Patricia Vice and Kathie Slotter v. Daniel J. Kasprzak, Patricia C. Kasprzak and Katherine D. Kasprzak

Opinion issued October 1, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00168-CV

PATRICIA VICE AND KATHIE SLOTTER, Appellants

V.

DANIEL J. KASPRZAK, PATRICIA C. KASPRZAK, AND KATHERINE D.

KASPRZAK, Appellees

On Appeal from the 125th District Court

Harris County, Texas

Trial Court Cause No. 2006-62609

O P I N I O N

In this defamation suit, appellants, Patricia Vice and Kathie Slotter, bring an

interlocutory appeal challenging the trial court's order that denied their summary

judgment motion in favor of the appellees, Daniel J. Kasprzak, Patricia C. Kasprzak,

and Katherine D. Kasprzak. In nine issues, Vice and Slotter argue that the trial court

erred in denying summary judgment on three publications because (1) the

publications were not "of and concerning" the Kasprzaks; (2) the publications were

substantially true; (3) Daniel J. Kasprzak is a limited-purpose public figure and (4)

no genuine issue of material fact exists on actual malice; (5) one of the publications

as to which summary judgment was denied was authored by Lisa Worthen, a non-party; (1) (6) Patricia Kasprzak and Katherine Kasprzak lack standing to bring suit; (7)

the Kasprzaks presented no evidence of pecuniary damages; (8) the Kasprzaks failed

to plead a tort recognized by the State of Texas and, therefore, their conspiracy claims

fail; and (9) because the Kasprzaks have no evidence of the commission of an

underlying tort, they have failed to raise a genuine issue of fact on their conspiracy

claim.

We reverse and render judgment in favor of Vice and Slotter.

Background

This dispute centers around animosity between a group of residents in the

Newport subdivision in Crosby, Texas and the New Property Owners' Association

of Newport, Inc. ("NPOAN"). Daniel Kasprzak, who lives in the Newport

subdivision, was involved in the formation of the NPOAN, (2) has served on the Board

of Directors of NPOAN since 1996, and served as the President of NPOAN in 1996

for a one-year term. He has served continuously as the Board President since 2001.

Daniel is also a licensed Texas attorney and has been a Trustee of the Crosby

Independent School District. As an attorney, Daniel has represented Newport Fund,

LLC, an entity related to the Newport subdivision's developer, Rampart, (3) in multiple

lawsuits that Newport Fund, LLC has been involved in against Newport property

owners. (4)

The local newspapers, the Highlands Star and the Crosby Courier (collectively

referred to as the Star Courier ), have reported on disputes among the NPOAN

members, Daniel Kasprzak, and Rampart, the developer of Newport. A portion of the

dispute that led up to the litigation concerned a Newport golf course that is privately

owned and a proposed agreement to build and operate a health club facility in the

unused portion of the golf club premises. The NPOAN Board ("the Board") formed

a committee to study the feasibility of operating a health club facility that resulted in

a recommendation to move forward with the negotiations for the venture. After the

Board voted to move forward, two of the Board's directors resigned because they

intended to campaign for votes against the approval of the health club facility.

Apparently, the two dissenting Board members believed that the health club facility

would do more benefit to the privately-owned golf course than to the residents of

Newport. The NPOAN members understood that the Board planned to raise their

maintenance fees to help finance the health facility. The publications pertinent to this

dispute include (1) an article entitled, "Newport controversy resumes," written by

Lewis Spearman and published on April 6, 2006 by the Star Courier , (2) an

anonymous flyer circulated to the Newport homeowners, and (3) a letter to the editor

written by Vice that was published by the Star Courier on April 13, 2006.

The anonymous flyer asked, "What is going on in Newport?" It asserted that

the authors had discovered from Harris County real property records: (1) the

assignment of property owner's delinquent maintenance fee accounts from the

bankruptcy trustee for the former Newport developer to Rampart that "gave Rampart

the right to collect maintenance fees ONLY (not keep them or spend them for us)";

(2) "[v]arious assignments of an additional 93 properties delinquent on maintenance

fees from the NPOAN (signed personally by Dan Kasprzak) to Newport Fund"; and

(3) "[t]he 2 nd Amendment to the Assignment of Rights and Assumption of Obligations

between the NPOAN and [Rampart] filed in December, 2005 which 'forgives all past

due assessments on lots [Rampart] obtained through foreclosure on past due

accounts. . . .'" The flyer demanded "to see where [Rampart] and/or Newport Fund

has EVER turned over to the NPOAN the proceeds from collected past due

maintenance fees or from the sale of the foreclosed lots/properties"; to see the

meeting records that approved the conveyance of the properties delinquent on

maintenance fees to Newport; and to see where the Amendment to the Assignment

of Rights and Assumption of Obligations between NPOAN and Rampart forgiving

all past due assessment on lots Rampart obtained through foreclosure "was discussed

and voted on in PUBLIC that this was in the best interest of the residents of Newport

who continue to bear the burden of paying forever increasing maintenance fees."

The flyer pointed out that Rampart and Newport Fund were both owned by Jim

Carpenter, the developer of Newport through Rampart, and that "Dan Kasprzak is the

NPOAN President & attorney of record for Newport Fund." The flyer further

demanded "to see the meeting records that there was full disclosure of Dan's

representation of Newport Fund and that this was understood and approved." It

asserted that the authors of the flyer had learned from the Harris County District

Clerk Records that "Newport Fund (with Dan Kasprzak as attorney of record) has

brought lawsuits for delinquent maintenance fees on at least 347 properties[,] which

court records show Judgment amounts of over $942,566." It declared:

The former & current Board Member(s) of the NPOAN have some explaining

to do. They are giving away our money to the developer. That money

could have been used for more amenities and avoided the current rise in

maintenance fees. Dan Kasprzak has been assigning to Newport Fund the

delinquent maintenance fee accounts (not included in the Assignment from the

Bankruptcy Court), representing Newport Fund (not the NPOAN) in ALL

collection actions, & filing the 2 nd Amended Assignment of Rights and

Assumption of Obligations Agreement which "forgives all past due

assessments on lots . . . Rampart obtained through foreclosure on past due

accounts. . . ."

Finally, the flyer stated that numerous requests for information had been denied by

the NPOAN. It stated, "We didn't agree to any of this . . . . We want answers . . . .

Don't YOU?," and it urged homeowners "to attend the Quarterly Meeting April 13 th

at the Country Club at 7:00 PM to ask your questions of the NPOAN Board."

The letter titled "Newport residents need to wake up" was written by Vice as

a Newport "Property-Owner" and appeared on the "Opinion Page" of the April 13,

2006 Star Courier . It stated that the Newport homeowners had "recently learned"

that Carpenter, the owner of Rampart, the developer of Newport, "ha[d] been

purchasing Newport properties obtained through Harris County Public Tax Sales even

when his companies are significantly delinquent in current taxes on other pieces of

properties that he has owned for many years in Newport," and it asked, "Isn't this

illegal?" It then stated,

In a current flyer we have also learned that our current NPOAN Board

President Dan Kasparzak [sic] makes his living by handling legal matters for

Newport properties for the developer Jim Carpenter. We are not talking a few

thousand dollars, we are talking millions of dollars. As President of NPOAN

and attorney of record for the developer and his many companies he is playing

both side [sic] of the fence. This is unethical business and should be reported

to the Texas Bar Association by everyone in the subdivision.

Newport property owners are being deceived and exploited by the

developer and our current NPOAN Board Members. We need to wake up and

take back control and management of running our subdivision.

The April 6, 2006 Star Courier article, written by Lewis Spearman and titled

"Newport controversy resumes," stated, "The controversy over Newport Subdivision

Board's activities with the subdivision's developer is reopened by residents making

fresh inferences based on county records." It stated that the controversy was "headed

to a showdown on April 13 at the Quarterly Meeting of NPOAN at the Country Club

at 7:00 p.m." It further stated, "Newport Funds [sic] brought lawsuits for delinquent

maintenance fees on at least 347 properties which court records show collected

amounts over $942,566 with the NPOAN Board President as Attorney of Record for

Newport Fund, according to Harris County Tax Records." In addition, the article

referenced the contents of the flyer and stated that Slotter "indicates that proceeds

(legal fees, maintenance fees collected on the foreclosed lots), from the homeowner

are paid directly to the NPOAN President's law firm and/or the deed was conveyed

directly to Newport Fund (not NPOAN)." It concluded, "The question is, has the

outstanding maintenance fee portion of the collection, or the market value of the lot,

ever been remitted to the NPOAN?"

On September 29, 2006, the Kasprzaks sued Vice, Slotter, Dian Demma, Mary

Lee Anderson, Bruce Lindsay, Lewis Spearman, Gilbert Hoffman individually and

d/b/a Grafikpress, and Graffikpress, Corporation, d/b/a Star Courier Newspapers, the

Highlands Star , the Crosby Courier , and Community Newspapers for defamation,

defamation per se, civil conspiracy, and invasion of privacy based on the allegedly

defamatory statements, and they sought a declaratory judgment as to the falsity of

published statements.

All of the parties filed traditional and no-evidence motions for summary

judgment. All of the parties except Vice and Slotter settled and were non-suited from

the proceedings. In their traditional motion for summary judgment, Vice and Slotter

contended that Daniel Kasprzak was a limited-purpose public figure and a public

official, and that he could not prove that Vice and Slotter had acted with actual malice

toward him as required for a limited-purpose public figure to prevail in a defamation

suit. Vice and Slotter also stated that they had relied on "extensive research and

investigation" prior to making the statements in the articles, the letter to the editor,

and the flyer . They argued that, as a matter of law, the articles and letters were

substantially true and not defamatory. Vice and Slotter also argued that the articles

and letters were not "of and concerning" Daniel Kasprzak. Finally, Vice and Slotter

argued that Patricia C. Kasprzak and Katherine D. Kasprzak, Daniel Kasprzak's wife

and daughter respectively, were not entitled to relief as a matter of law because these

appellees were not mentioned in the article or letters.

In their no-evidence motion for summary judgment, Vice and Slotter argued

that the Kasprzaks had presented no evidence that Vice and Slotter libeled them, no

evidence of damages, no evidence of defamation per se, no evidence that Vice and

Slotter invaded their privacy by intrusion into seclusion, and no evidence of a civil

conspiracy.

The Kasprzaks responded that Daniel Kasprzak was not a public official or a

limited-purpose public figure, and therefore, actual malice did not apply.

Specifically, the Kasprzaks argued that, although Daniel Kasprzak is a Trustee for the

Crosby Independent School District, the defamatory statements at issue in the suit did

not relate to his status as trustee. The Kasprzaks further argued that Daniel Kasprzak

was not a limited-purpose public figure because the controversy at issue is not a

public controversy, but just "a grudge held by a few Newport homeowners against the

president of their homeowners' association." The Kasprzaks argued that even if

Daniel Kasprzak was a public official or a limited-purpose public figure, a fact

question existed as to whether Vice and Slotter acted with actual malice.

The Kasprzaks also responded to Vice and Slotter's no-evidence motion for

summary judgment. The Kasprzaks pointed out that, in addition to the defamatory

statements contained in the flyer, the April 6, 2006 newspaper article attributed to

Slotter and the April 13, 2006 letter published by Vice, numerous other slanderous

statements were alleged in the Kasprzaks' pleadings and in their summary judgment

affidavits. However, in response to interrogatories, only the foregoing publications

were identified by the Kasprzaks as defaming them.

Jurisdiction

As a threshold matter, we determine our jurisdiction over this appeal.

Generally, an order denying a motion for summary judgment is interlocutory

and, therefore, not appealable. Cincinnati Life Ins. Co. v. Cates , 927 S.W.2d 623, 625

(Tex. 1996). However, Vice and Slotter argue that we have jurisdiction over the

denial of their motion for summary judgment in its entirety under section 51.014(a)(6)

of the Texas Civil Practice and Remedies Code, which provides that a person may

appeal from an interlocutory order that

denies a motion for summary judgment that is based in whole or in part

upon a claim against or a defense by . . . a person whose communication

appears in or is published by the electronic or print media, arising under

the free speech or free press clause of the First Amendment to the

United States Constitution, or Article I, Section 8, of the Texas

Constitution, or Chapter 73.

Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (a)(6) (Vernon 2008).

The Kasprzaks argue that section 51.014(a)(6) applies only to Vice and

Slotter's appeal of the trial court's order on the Kasprzaks' defamation claim, and not

to their claims for invasion of privacy and civil conspiracy, and that, therefore, our

jurisdiction is limited to consideration of Vice and Slotter's defamation claim.

However, section 51.014(a)(6) expressly provides jurisdiction for the review of an

interlocutory order that "denies a motion for summary judgment . . . based in whole

or in part upon a claim against or a defense by . . . a person whose communication

appears in or is published by the electronic or print media." Id .

In their motion for summary judgment, Vice and Slotter argued that they were

entitled to summary judgment on the Kasprzaks' conspiracy claim because the

Kasprzaks failed to establish "an underlying tort of defamation." Vice and Slotter

also argued in their motion for summary judgment that the Kasprzaks' claim for

invasion of privacy by intrusion into seclusion failed because it was based on the

publication of allegedly defamatory statements that Vice and Slotter had already

argued were not defamatory.

Because the Kasprzaks' claims for conspiracy and invasion of privacy are

dependent upon their defamation claims, and thus are "based in part" upon their

defamation claims, we hold that the trial court's denial of Vice and Slotter's motion

for summary judgment is appealable in its entirety under section 51.014(a)(6).

Summary Judgment Standard of Review

A defendant moving for summary judgment must either (1) disprove at least

one element of the plaintiff's cause of action or (2) plead and conclusively establish

each essential element of an affirmative defense to rebut plaintiff's cause. Cathey v.

Booth , 900 S.W.2d 339, 341 (Tex. 1995). The movant must conclusively establish

its right to judgment as a matter of law. See MMP, Ltd. v. Jones , 710 S.W.2d 59, 60

(Tex. 1986). A matter is conclusively established if reasonable people could not

differ as to the conclusion to be drawn from the evidence. City of Keller v. Wilson ,

168 S.W.3d 802, 816 (Tex. 2005).

When reviewing the denial of a motion for summary judgment, we apply the

same standards as when summary judgment has been granted. Harvest House

Publishers. v. Local Church , 190 S.W.3d 204, 209 (Tex. App.--Houston [1st Dist.]

2006, pet. denied). Because summary judgment is a question of law, we review a trial

court's summary judgment decision de novo. Bendigo v. City of Houston , 178

S.W.3d 112, 113 (Tex. App.--Houston [1st Dist.] 2005, no pet.). The standard of

review for a traditional summary judgment motion is threefold: (1) the movant must

show that there is no genuine issue of material fact and that he is entitled to judgment

as a matter of law; (2) in deciding whether there is a disputed material fact issue

precluding summary judgment, the court must take evidence favorable to the

nonmovant as true; and (3) the court must indulge every reasonable inference in favor

of the nonmovant and resolve any doubts in the nonmovant's favor. Nixon v. Mr.

Prop. Mgmt. Co ., 690 S.W.2d 546, 548-49 (Tex. 1985); see Tex. R. Civ. P. 166a(c).

A party moving for no-evidence summary judgment must assert only that there

is no evidence of one or more essential elements of a claim or defense on which the

nonmovant would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i). The

burden then shifts to the nonmovant to produce evidence raising a fact issue on the

challenged elements. See id . A no-evidence summary judgment is improper if the

respondent brings forth more than a scintilla of probative evidence to raise a genuine

issue of material fact. Id .; Forbes Inc. v. Granada Biosciences, Inc ., 124 S.W.3d 167,

172 (Tex. 2003). More than a scintilla of evidence exists if the evidence would allow

reasonable and fair-minded people to differ in their conclusions. Forbes , 124 S.W.3d

at 172 .

To be considered by the trial court or reviewing court, summary judgment

evidence must be presented in a form that would be admissible at trial. Hidalgo v.

Surety Sav. & Loan Ass'n , 462 S.W.2d 540, 545 (Tex. 1971); Friday v. Grant Plaza

Huntsville Assoc. , 713 S.W.2d 755, 756 (Tex. App.--Houston [1st Dist.] 1986, no

writ). A party must object in writing to the form of summary judgment evidence and

place the objections before the trial court, or its objections will be waived. See Tex.

R. Civ. P. 166a(f); Grand Prairie Indep. Sch. Dist. v. Vaughan , 792 S.W.2d 944, 945

(Tex. 1990). Failure to secure the trial court's ruling on the objections to the

summary judgment evidence also waives the complaint for appeal. See Roberts v.

Friendswood Development Co ., 886 S.W.2d 363, 365 (Tex. App.--Houston [1st

Dist.] 1994, writ denied).

When a party seeks both a traditional and a no evidence summary judgment on

the non-movant's claim, we first review the trial court's summary judgment under the

no-evidence standards of Rule 166a(i). Ford Motor Co. v. Ridgway , 135 S.W.3d 598,

600 (Tex. 2004). If the nonmovant failed to produce more than a scintilla of evidence

raising a genuine fact issue on the challenged elements of his claims, then there is no

need to analyze whether the movant's summary judgment proof satisfied the

traditional summary judgment burden of proof under rule 166a(c). Id .

Defamation

Vice and Slotter moved for summary judgment on the Kasprzaks' defamation

claims regarding the two letters to the editor, an anonymous flyer, and an article. (5)

To establish a defamation claim, a plaintiff must demonstrate that (1) the

defendant published a factual statement (2) that was capable of defamatory meaning

(3) concerning the plaintiff (4) while acting with either negligence, if the plaintiff is

a private individual, or actual malice, if the plaintiff is a public figure or public

official, concerning the truth of the statement. See WFAA-TV, Inc. v. McLemore , 978

S.W.2d 568, 571 (Tex. 1998).

A. Whether the Publications Are "Of and Concerning" Appellees

In their first issue, appellants argue that the publications at issue are not "of and

concerning" the plaintiffs, as required to establish a defamation claim. They contend

that the publications concerned a matter of controversy within the Newport

subdivision and were a criticism of the NPOAN board, "a quasi-governmental entity,"

not of the individual plaintiffs. They contend that the statements were directed at

Rampart, the developer for the Newport subdivision, and NPOAN, the New Property

Owners Association of Newport, and were not "of and concerning" Daniel Kasprzak.

They also contend that plaintiffs Patricia and Katherine Kasprzak's claims are

precluded by the "of and concerning" doctrine since they were "never mentioned or

even alluded to" in the publications. In their fifth issue, Vice and Slotter argue that

they should have been granted summary judgment on a letter published by Lisa

Worthen because they were not the authors of that letter.

A defamatory statement must be directed at the plaintiff as an ascertainable

person to be actionable. Newspapers Inc. v. Matthews, 161 Tex. 284 , 339 S.W.2d

890, 893 (Tex. 1960); Cox Texas Newspapers, L.P. v. Penick , 219 S.W.3d 425, 433

(Tex. App.--Austin 2007, pet. denied) ; Davis v. Davis , 734 S.W.2d 707, 711 (Tex.

App.--Houston [1 st Dist.] 1987, writ ref'd n.r.e.) (holding that letter that neither

mentioned nor referenced plaintiff was not defamatory). A family member does not

have a cause of action based on the defamation of another family member. Renfro

Drug Co. v. Lawson , 138 Tex. 434 , 160 S.W.2d 246, 250 (Tex. 1942); Johnson v.

Southwestern Newspapers Corp ., 855 S.W.2d 182, 188 (Tex. App.--Amarillo 1993,

writ denied).

To maintain a defamation action, a plaintiff must be referenced in the

complained-of statement. Newspapers, Inc. , 161 Tex. 284 , 339 S.W.2d at 893 .

Whether a plaintiff is referenced in a statement is a question of law. See id. A

publication is "of and concerning the plaintiff" if persons who knew and were

acquainted with him understood from viewing the publication that the defamatory

matter referred to him. Allied Mktg. Group, Inc. v. Paramount Pictures Corp. , 111

S.W.3d 168, 173 (Tex. App.--Eastland 2003, pet. denied) (citing Newspapers, Inc. ,

339 S.W.2d at 894 ). It is not necessary that the plaintiff be specifically named in the

communication to be defamatory, but it must be clear to those who know and are

acquainted with him that the defamatory statement is directed to him. Penick , 219

S.W.3d at 433 ; Allied , 111 S.W.3d at 173 . The plaintiff need not prove that the

defendant intended to refer to him. Id . (citing Ruzicka v. Conde Nast Publications,

Inc ., 999 F.2d 1319, 1322 (8th Cir. 1993)). "A defamatory communication is made

concerning the person to whom its recipient correctly, or mistakenly but reasonably,

understands that it was intended to refer." Restatement (Second) of Torts § 564

(1977). The false statement must point to the plaintiff and no one else. Newspapers,

Inc ., 339 S.W.2d at 894 .

After reviewing Vice's letter to the editor, we conclude that the trial court

properly denied Vice and Slotter's motion for summary judgment on the "of and

concerning" element of the Kasprzaks' defamation claim with respect to Daniel

Kasperzak because the publication specifically referred to him by name and referred

to him as the NPOAN Board President. Vice's letter to the editor stated,

In a current flyer we have also learned that our current NPOAN Board

President Dan Kasprzak [sic] makes his living by handling legal matters

for Newport properties for the developer, Jim Carpenter. We are not

talking a few thousand dollars, we are talking millions of dollars. As

President of NPOAN and attorney of record for the developer and his

many companies, he is playing both side[s] of the fence. This is

unethical business and should be reported to the Texas Bar Association

by everyone in the subdivision.

Likewise, the flyer specifically stated that "Dan Kasprzak is the NPOAN President

& attorney of record for Newport Fund"; that "Newport Fund (with Dan Kasprzak as

attorney of record) has brought lawsuits for delinquent maintenance fees on at least

347 properties which court records show Judgment amounts of over $942,566"; that

"Dan Kasprzak has been assigning to Newport Fund the delinquent maintenance fee

accounts . . ., representing Newport Fund (not the NPOAN) in ALL collection

actions, & filing the 2 nd Amended Assignment of Rights and Assumption of

Obligations Agreement which 'forgives all past due assessments on lots. . . Rampart

obtained through foreclosure on past due accounts. . .'"; and that "we didn't agree to

any of this." It states, "We want answers." Similarly, the April 13, 2006 Star Courier

article repeats the statement that "Newport Fund brought lawsuits for delinquent

maintenance fees on at least 347 properties which court records show collected

amounts over $942,566 with the NPOAN Board President as Attorney of Record for

Newport Funds [sic], according to Harris County Tax Records."

However, our review of the allegedly defamatory publications reveals no

reference to either Patricia or Katherine Kasprzak. Nor is it reasonable to infer that

the complained of statements were intended to refer to either of them. Therefore, we

conclude that the trial court erred in denying appellants' motion for summary

judgment on Patricia and Katherine Kasprzak's claims.

We overrule Vice and Slotter's first issue as it relates to Daniel Kasprzak. We

sustain their first issue insofar as it relates to Patricia and Katherine Kasprzak. (6)

Having concluded that the publications over which Patricia and Katherine

Kasprzak sued Vice and Slotter do not refer to either plaintiff, and having concluded

that Patricia and Katherine Kasprzak's claims of invasion of privacy and conspiracy

are derivative of their defamation claims, we further hold that Patricia and Katherine

Kasprzak lack standing to pursue any of their claims in this litigation.

We sustain Vice and Slotter's sixth issue.

B. Whether Kasprzak Is a Limited Purpose Public Figure

In their third issue, Vice and Slotter argue that Kasprzak is a limited-purpose

public figure for purposes of his defamation claim and that, therefore, he is required

to prove that Vice and Slotter published the challenged editorial, flyer, and letter with

actual malice. The Kasprzaks respond that Kasprzak is not a public official or

limited-purpose public figure, and, therefore, actual malice does not apply. The

Kasprzaks argue that although Kasprzak is a Trustee for the Crosby Independent

School District the defamatory statements at issue in the suit do not relate to his status

as trustee. They further argue that Kasprzak is not a limited-purpose public figure

because the controversy at issue is not a public controversy, but just "a grudge held

by a few Newport homeowners against the president of their homeowners'

association."

"The degree and burden of proof required in a defamation case hinges on the

status of the plaintiff as either a public figure or private individual." Einhorn v.

LaChance , 823 S.W.2d 405, 412 (Tex. App.--Houston [1st Dist.] 1992, writ dism'd

w.o.j.); see also HBO, A Division of Time Warner Entertainment Co., L.P. v.

Harrison , 983 S.W.2d 31, 35-36 (Tex. App.--Houston [14th Dist.] 1998, no pet.).

Freedom of expression upon public questions is secured by the First Amendment.

New York Times Co. v. Sullivan , 376 U.S. 254, 269 , 84 S. Ct. 710, 720 (1964).

Moreover, there is a profound national commitment to the principle that debate on

public issues should be "uninhibited, robust, and wide-open," even if it includes

"vehemently caustic, sometimes unpleasantly sharp attacks" on public figures. Id . at

270, 84 S. Ct. at 720 ; see also Casso v. Brand , 776 S.W.2d 551, 554 (Tex. 1989).

The question in a libel case brought by a public figure, therefore, is whether

statements made in such a context forfeit constitutional protection by the falsity of

some the factual statements made and the defamation of the plaintiff. Sullivan , 376

U.S. at 271 , 84 S. Ct. at 721 .

The Texas courts have adopted the defamation standard set out in Sullivan for

public officials and public figures. Casso , 776 S.W.2d 554 . Under this standard, a

public official or public figure bears the burden of proving actual malice by clear and

convincing evidence. See Sullivan , 376 U.S. at 279-80 , 84 S. Ct. at 726 ; Turner v.

KTRK Television, Inc. , 38 S.W.3d 103, 116 (Tex. 2000); see also HBO , 983 S.W.2d

at 36 . "Actual malice means that the defendant made the statement knowing that it

was false or with reckless disregard about whether the statement was false or not."

McLemore , 978 S.W.2d at 571 (quoting Sullivan , 376 U.S. at 279-80 , 84 S. Ct. at

726 ); Cloud v. McKinney , 228 S.W.3d 326, 339 (Tex. App.--Austin 2007, no pet.).

For the actual malice standard to apply, two prerequisites must be met: "First, the

plaintiff must be a public official for the purpose of the published statements, and

second, the allegedly defamatory statements must relate to the plaintiff's official

conduct." HBO , 983 S.W.2d at 36 .

The higher standard of proof of defamation applies not only to public officials

but also to "limited purpose public figures." See Casso , 776 S.W.2d at 554 ; Einhorn ,

823 S.W.2d at 412-13 . Limited-purpose public figures are those persons who "thrust

themselves to the forefront of particular public controversies in order to influence the

resolution of the issues involved." Einhorn , 823 S.W.2d at 413 (quoting Gertz v.

Robert Welch, Inc. , 418 U.S. 323, 345 , 94 S. Ct. 2997, 3009 (1974)).

Texas has established a three-step test to determine whether a defamation

plaintiff is a limited-purpose public figure:

(1) the controversy at issue must be public both in the sense that 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 must have more than a trivial or tangential role in the

controversy;

(3) the alleged defamation must be germane to the plaintiff's participation

in the controversy.

McLemore , 978 S.W.2d at 571 .

The editorial, flyer, and letter to the editor alleged in this case to be defamatory

were all part of an ongoing public controversy involving a homeowners association

and over 2,000 homes. As the Kasprzaks acknowledge, the controversy "has played

out in the [ Star Courier ] (which has a circulation of approximately 7,500) and other

local newspapers." The allegedly libelous statements were all made against Kasprzak

in his dual capacities as President of the NPOAN Board and as the attorney of record

for the developer of Newport. They essentially accused Kasprzak of an improper

conflict of interest in taking actions on behalf of the developer and against the

interests of the homeowners in his capacity as attorney for the developer, Jim

Carpenter, and the developer's companies, Rampart and Newport Fund, without the

knowledge and approval of the homeowners. (7)

The public nature of the controversy in the Crosby community and Daniel

Kasprzak's more than trivial role in it are attested not only by the nature of the

dispute and the admission by the Kasprzaks that the dispute had played out in the

local media, but, for example, by the affidavit of Lewis Spearman, author of the

challenged April 13, 2006 article, which states, "Several articles and letters to the

editor have been published in the [ Star Courier ] regarding disputes involving

[NPOAN]. Grafikpress [owner of the Star Courier and several other community

weekly newspapers] published letters to the editor and articles highlighting the

arguments of both sides of the NPOAN disputes." Spearman then lists six articles on

the dispute he himself authored between November 24, 2005 and April 13, 2006. The

summary judgment record also contains letters to the editor of the Star Courier

published by Kasprzak, Pat Kasprzak, and Newport Development Joint Venture

(signed by "J.H. (Jim) Carpenter" as "President, Rampart Capital Corporation")

presenting the opposing side of the controversy.

We conclude that all three prongs of the McLemore test are satisfied and that

Kasprzak is a limited-purpose public figure for purposes of his defamation claims.

See McLemore , 978 S.W.2d at 571 . Therefore, the higher "actual malice" standard

of proof applies to his defamation claims.

We sustain Vice and Slotter's third issue.

C. Whether the Challenged Statements Are Defamatory

In their second issue, Vice and Slotter argue that the trial court erred in denying

summary judgment on Kasprzak's claims against them because the statements in the

letter and flyer are substantially true and not defamatory as a matter of law.

The burden is on a public figure or public official to prove that allegedly

defamatory statements made about him in the media were false. Bentley v. Bunton ,

94 S.W.3d 561, 586 (Tex. 2002), citing Sullivan , 376 U.S. at 279-80 , 84 S. Ct. 710

(requiring that public figure or public official prove falsity); Turner , 38 S.W.3d at

117-30 . (8) Proof of falsity must be made by a preponderance of the evidence. Bentley ,

94 S.W.3d at 562 (stating that public figure plaintiff has burden of proving his

defamation claim by clear and convincing evidence); see also Turner , 38 S.W.3d at

116 .

"[T]he meaning of a publication, and thus whether it is false and defamatory,

depends on a reasonable person's perception of the entirety of [the] publication and

not merely on individual statements." Bentley , 94 S.W.3d at 579 (quoting Turner , 38

S.W.3d at 115 ); see also Allied Marketing Group , 111 S.W.3d at 176 ; Provencio v.

Paradigm Media, Inc. d/b/a The Texas Network , 44 S.W.3d 677, 681 (Tex. App.--El

Paso 2001, no pet.). Whether language is capable of having a defamatory meaning

is a question of law in which the court construes the statement as a whole in light of

the surrounding circumstances based upon how a person of ordinary intelligence

would perceive it. Turner , 38 S.W.3d at 114 ; Musser v. Smith Protective Serv., Inc. ,

723 S.W.2d 653, 654-55 (Tex. 1987); Simmons , 920 S.W.2d at 443.

A true account that does not create a false impression by omitting material facts

or suggestively juxtaposing them is not actionable, regardless of the conclusions that

people may draw. Turner , 38 S.W.3d at 118 . But by omitting key facts and falsely

juxtaposing others, a publication may be both false and defamatory. Id . The test as

to whether the words or statements are actually defamatory is the reasonable person

test and not the opinion of the plaintiff. Simmons v. Ware , 920 S.W.2d 438, 451 (Tex.

App.--Amarillo 1996, no writ); Arant v. Jaffe , 436 S.W.2d 169, 176 (Tex. Civ.

App.--Dallas 1968, no writ).

If the statement, viewed in the applicable light, has only one clear and obvious

meaning, no further inquiry is necessary. Gray v. HEB Food Store No. 4. , 941 S.W.2d

327, 329 (Tex. App.--Corpus Christi 1997, pet. denied). However, if the statement

is ambiguous or cannot be understood without the use of extrinsic evidence, the court

must consider innuendo. Turner , 38 S.W.3d at 114 ; Moore v. Waldrop , 166 S.W.3d

380, 386 (Tex. App.--Waco 2005, no pet.). Innuendo may be used to explain but not

to extend the effect and meaning of the language. Simmons , 920 S.W.2d at 451 .

Courts use the "substantial truth" test to determine whether a factual statement

is false. Masson v. New Yorker Mag., Inc ., 501 U.S. 496, 516-17 , 111 S. Ct. 2419,

2433 (1991); McIlvain , 794 S.W.2d at 15-16; Grotti v. Belo Corp. , 188 S.W.3d 768,

774-75 (Tex. App.--Fort Worth 2006, pet. denied) . (9) To determine whether an

allegedly defamatory publication is substantially true, we consider whether it is more

damaging to the plaintiff's reputation in the mind of the average person than a truthful

statement would have been. McIlvain , 794 S.W.2d at 16; Grotti , 188 S.W.3d at 775 ;

Simmons , 920 S.W.2d at 447 . This involves looking to the "gist" of the publication.

McIlvain , 794 S.W.2d at 16; Grotti , 188 S.W.3d at 775 . The analysis for

distinguishing between an actionable statement of fact and a constitutionally

protected expression of opinion focuses on the statement's verifiability and the entire

context in which it was made. Simmons , 920 S.W.2d at 447 . If a statement has the

same effect on the mind of the average reader as a true statement, then it is not false.

Masson , 501 U.S. at 517 , 111 S. Ct. at 2433 ; McIlvain , 794 S.W.2d at 16. If the

article correctly conveys the story's gist but relayed certain details incorrectly, the

article will be considered substantially true. See Turner , 38 S.W.3d at 115 .

"That a statement is defamatory--that is, injurious to reputation--does not

mean that it is false, and vice versa." Bentley , 94 S.W.3d at 587 . A defamatory

statement must be sufficiently factual to be susceptible of being proved objectively

true or false, as contrasted from a purely subjective assertion. See Milkovich v.

Lorain Journal Co ., 497 U.S. 1, 21-22 , 110 S. Ct. 2695, 2707 (1990). Expressions

of opinion may be derogatory and disparaging but nevertheless be protected by the

First Amendment of the United States Constitution and by article I, section 8 of the

Texas Constitution. See Falk & Mayfield L.L.P. v. Molzan , 974 S.W.2d 821, 824

(Tex. App.--Houston [14th Dist.] 1998, pet. denied); Yiamouyiannis v. Thompson ,

764 S.W.2d 338, 340 (Tex. App.--San Antonio 1988, writ denied).

The determination of whether a publication is an actionable statement of fact

or a constitutionally protected statement of opinion, like the determination whether

a statement is false and defamatory, is a question of law. Bentley , 94 S.W.3d at 580 ;

see also Turner , 38 S.W.3d at 114 . And, like the determination whether a publication

is false and defamatory, the determination whether a publication is an actionable

statement of fact or a protected expression of opinion depends upon a reasonable

person's perception of the entirely of the publication. Bentley , 94 S.W.3d at 579 .

To distinguish between fact and opinion, the Texas Supreme Court has

determined that we are to use Milkovich as our guide. Bentley , 94 S.W.3d at 579 . In

Milkovich , the United States Supreme Court refused to create an artificial dichotomy

between 'opinion' and 'fact'. Id . at 579-80. Rather, it set out what it took to be

existing constitutional doctrine of defamation liability. Id. The Texas Supreme Court

extrapolated from Milkovich the following principles that apply in determining

whether a statement is one of opinion or fact: (1) the statement must be provable as

false, at least "where public-official or public-figure plaintiffs [are] involved"; (2)

constitutional protection is afforded to "statements that cannot 'reasonably be

interpreted as stating actual facts'" in order to assure "that public debate will not

suffer for lack of 'imaginative expression' or . . . 'rhetorical hyperbole.'"; (3) "where

a statement of 'opinion' on a matter of public concern reasonably implies false and

defamatory facts regarding public figures or officials, those individuals must show

that such statements were made with knowledge of their false implications or with

reckless disregard of their truth"; or if the statement involves a private figure on a

matter of public concern, the "plaintiff must show that the false connotations were

made with some level of fault"; and (4) the statements must be given "enhanced

appellate review" to assure that these determinations are made in a manner that does

not "constitute a forbidden intrusion" into free speech. Bentley , 94 S.W.3d at 580 .

Because Vice and Slotter filed both a no-evidence motion for summary

judgment and a traditional motion, we first determine whether Kasprzak has produced

evidence of falsity of the publications taken as a whole sufficient to take to a jury and

thus whether the allegedly defamatory statements made by Vice and Slotter were

capable of having defamatory meaning. See Turner , 38 S.W.3d at 114 (stating that

whether language is capable of having defamatory meaning is question of law). If so,

we determine whether Kasprzak has presented evidence that the false statements

made by Vice and Slotter were made with "knowledge of their false implications or

with reckless disregard of their truth." See Bentley , 94 S.W.3d at 580 .

1. Article entitled "Newport controversy resumes" and Flyer

The April 13, 2006 article, written by Lewis Spearman, attributes some of the

reporting to Slotter. Specifically, the article states, "Kathie Slotter indicates that

proceeds (legal fees, maintenance fees collected, or the foreclosed lots) from the

homeowner is [sic] paid directly to the NPOAN President's lawfirm and/or the deed

is conveyed directly to Newport Fund (not the NPOAN)." The article and this

statement point out that Kasprzak is the NPOAN Board President and also the

attorney of record for Newport Fund and that questions have been raised about

Kasprzak's dual role. (10)

The flyer also points out that a group of Newport residents have issues with

Kasprzak's serving as both the NPOAN Board President and as attorney of record for

Newport Fund. The flyer states, "We want to see the meeting records that there was

full disclosure of Dan's representation of Newport Funds [sic] and that this was

understood and approved." It also states, "Dan Kasprzak has been assigning to

Newport Fund the delinquent maintenance fee accounts (not included in the

Assignment from the Bankruptcy Court), representing Newport Fund (not the

NPOAN) in ALL collection actions, & filing the 2nd Amended Assignment of Rights

and Assumption of Obligations Agreement which 'forgives all past due assessments

on lots . . . Rampart obtained through foreclosure on past due accounts. . . .'"

Kasprzak has presented no evidence that these statements of fact are false.

Rather, the summary judgment evidence shows that Kasprzak was indeed the NPOAN

Board President at the time the allegedly defamatory article was written and that he

was also the attorney of record for Newport Fund for the collection of delinquent

receivables for Newport lots, which were assigned to Rampart by the bankruptcy

court. The "Letter to the Residents of Newport from Newport Development Joint

Venture," dated April 24, 2006, signed by Jim Carpenter as President of Rampart, and

published by the Star Courier after the allegedly false and defamatory statements

were made states:

Rampart acknowledges that in 2001 it engaged Dan Kasprzak's law firm, John

DeLuca, Kennedy, and Kurisky, Attorneys-at-Law to represent Newport Fund

Corporation in the collection of delinquent receivables for lots throughout

Newport. These receivables were sold and assigned to Rampart by the

bankruptcy court. Prior to accepting the engagement, Mr. Kasprzak performed

a conflicts of interest check with his firm and disclosed his pending

representation to every member of the Board of Directors for CISD and

NPOAN. All parties agreed that Dan's involvement would accelerate the

resolution of the delinquent accounts receivable (all accounts had both severe

past due homeowners' maintenance fees and/or property taxes) which had

greatly hindered [Crosby I.S.D.], NPOAN, an [Newport M.U.D.] for many

years.

In addition, an April 13, 2006 Star Courier article in the summary judgment

record, likewise written by Spearman, states that, in response to the flyer, Carpenter

had "represented that the developer has not violated any provisions of its agreements

with the bankruptcy court, NPOAN, Crosby I.S.D. or Newport M.U.D."; that

Carpenter had shown by county court records that "Rampart was granted by the

Bankruptcy Trustee delinquent accounts for maintenance fees from various property

owners in Newport Subdivision in the total amount of $3,177,946.60"; and that

"Carpenter also presented an affidavit for Filing Dedicatory Instruments for

[NPOAN] sworn Oct. 4, showing that 'Rampart hereby grants and assigns to NPOAN

its rights to assess and collect all future monthly maintenance charges, fees, dues and

assessments, arising or accruing after the date hereof' and later indicating that the

agreement does not grant the NPOAN any rights to collect or receive any portion or

any amounts collected by Rampart."

These statements do not refute the factual statements in the anonymous flyer

and the April 13, 2006 article; they support them. Moreover, these disclosures were

made after the flyer was distributed and before Kasprzak brought his claims alleging

that appellants had published false statements of fact about him . They undermine,

rather than support, Kasprzak's ability to prove the falsity of appellants factual

statements. See Bentley , 94 S.W.3d at 579 (placing burden of proving falsity on

public figure defamation plaintiff).

Kasprzak also complains that the Star Courier's report, based on its interview

with Slotter, was inaccurate and defamatory in stating that "Newport Funds [sic]

brought lawsuits for delinquent maintenance fees on at least 347 properties which

court records show collected amounts over $942,566 with the NPOAN Board

President as Attorney of Record for Newport Fund, according to Harris County Tax

Records." (Emphasis added). Kasprzak contends that these were judgment amounts,

as stated in the flyer, not collections. If an article correctly conveys the story's gist

but relays certain details incorrectly, the article will be considered substantially true

and therefore not defamatory. See Turner , 38 S.W.3d at 115 .

Kasprzak's real complaint is based on innuendo that arises from the

characterization of the language in the challenged documents and from the

characterization of Vice and Slotter's extraneous words and actions by two NPOAN

board members in affidavits attached as summary judgment proofs to the Kasprzaks'

response to summary judgment and by appellees Daniel and Patricia Kasprzak

themselves and the Newport developer, Carpenter, in their affidavits and other

summary judgment proofs. For example, Carpenter's "Letter to the Residents of

Newport" characterizes the flyer as accusing Rampart of "embezzlement" and

Kasprzak of "conspiring with Rampart." No such language appears in the flyer, the

letter, or the April 13, 2006 article, and no such characterization of Kasprzak's

actions is reasonably inferable from the language of these documents. The

Kasprzaks' own characterization of the allegedly defamatory statements cannot form

the basis for a defamation suit against Vice and Slotter. See Simmons , 920 S.W.2d

at 451 ; Arant , 436 S.W.2d at 176 .

We conclude as a matter of law that neither the April 23 article nor the flyer is

defamatory.

2. Letter to the Editor

In her letter to the editor, Vice raises questions about Kasprzak's role as the

NPOAN Board President and his other role as attorney of record for the Newport

Fund and Rampart. In one paragraph, Vice states,

In a current flyer we have also learned that our current NPOAN Board

President, Dan Kasparzak [sic] makes his living by handling legal

matters for Newport properties for the developer, Jim Carpenter. We are

not talking a few thousand dollars, we are talking millions of dollars.

As President of NPOAN and attorney of record for the developer and his

many companies, he is playing both sides of the fence. This is unethical

business and should be reported to the Texas Bar Association by

everyone in the subdivision.

Like the flyer and the April 13, 2006 article, this publication, read as a whole,

fails to convey a substantially false and defamatory impression by omitting material

facts or suggestively juxtaposing true facts. Rather, Vice states that Daniel Kasprzak

is the President of NPOAN, the homeowner's association that presumably serves the

interests of Newport residents, while at the same time representing Newport Fund, an

entity related to the developer client that has developed Newport and has collected

delinquent maintenance fees from homeowners through suits brought on the

developer's behalf by Kasprzak. It is undisputed that since 2001, Daniel Kasprzak,

as an attorney, has represented Newport Fund, a company owned by the developer of

Newport, while at the same time serving as the President of the NPOAN. It is also

undisputed that Kasprzak has represented Newport Fund in suits against the NPOAN

homeowners for the collection of delinquent maintenance fees in the amounts and that

there have been public disputes, widely reported in Newport, over whether

Kasprzak's actions have benefitted his client, Newport Fund, and himself, as attorney

for Newport Fund, at the expense of the NPOAN. There is no evidence that these

statements are false. To the contrary, Kasprzak testified as follows in his deposition:

Q. Were there occasions where the deed was conveyed directly to the

Newport Fund?

A. I'm sure there were some occasions where that happened.

Kasprzak also testified in his affidavit, "The only payments that have ever been made

have been payments to my firm for legal services which were performed for Newport

Fund and invoiced on an hourly basis at rates equal to or below my firm's standard

hourly rates." And he further testified in his deposition:

A. We sued them [NPOAN homeowners] because they were

delinquent on their maintenance fees.

Q. Were some of these maintenance fees that had been assigned to

Rampart?

A. Most of them were maintenance fees that had been assigned to

Rampart--

. . . .

Q. Wasn't . . . the assignment for Rampart and the decision to pursue

these very stale claims made for [the] purpose of generating

money that Rampart could use as a developer or--and/or to pay

bills or anything it chose to?

A. Are you talking about the assignment from the bankruptcy trustee

to Rampart?

Q. Yeah. Yeah.

A. They were assigned as an asset of the estate, and I think it was

implicit, or at least it was their understanding at the time that

they--those funds they had collected could be used for whatever

they wanted.

The statement in Vice's letter that Kasprzak "makes his living by handling

legal matters for Newport properties for the developer Jim Carpenter," and that "we

are talking millions of dollars" is supported by the April 20, 2006 article in the Star

Courier , written after Vice's letter appeared and after the Kasprzaks had presented

their response, which states that Carpenter had shown by county court records that

"Rampart was granted by the Bankruptcy Trustee delinquent accounts for

maintenance fees from various property owners in Newport Subdivision in the total

amount of $3,177,946.60."

Nor does Vice's statement that Kasprzak had engaged in "unethical business"

by making his living by handling legal matters for Newport properties for Carpenter

while serving as NPOAN board chairman rise to defamatory meaning in the absence

of a false or misleading statement of fact, because the statement is Vice's "individual

judgment that rests solely in the eye of the beholder" and is based on undisputed

facts. See Falk & Mayfield L.L.P. , 974 S.W.2d at 824 (concluding that term "lawsuit

abuse" is expression of opinion). "Admittedly, the accusation is derogatory and

disparaging, but this is no different than saying that one is ugly, scurrilous, or

disgusting." Id . Moreover, Vice's request that Kasprzak be reported to the Texas Bar

Association is not a statement of fact--it is a call to action based on Vice's opinion

that Kasprzak's behavior was unethical due to his dual role--and thus, not

defamatory. See id .; see also Reedy v. Webb , 113 S.W.3d 19, 21-25 (Tex.

App.--Tyler 2002, pet. denied) (affirming summary judgment against contractor who

sued reporter and television station for defamation in broadcast and web article,

including call for homebuyers to contact builder or city to determine if house had

passed all inspections, where allegedly defamatory statements were substantially

true); cf. Texas Disposal Sys. Landfill, Inc. v. Waste Mgt. Holdings, Inc. , 219 S.W.3d

563, 576-77 (Tex. App.--Austin 2007, pet. denied) (affirming summary judgment

against landfill operator's competitor who published "Action Alert memo" that

knowingly including false and misleading statements with admitted intent of

conveying message that defendant was not in compliance with landfill regulations

and ended with call to action encouraging readers to contact certain local and county

officials "to let them know of your environmental and traffic concerns."). We

conclude that Vice's statements are expressions of opinion based on substantially true

factual statements and are protected by the First Amendment of the Constitution and

Section 8, article I, of the Texas Constitution. See Carr v. Brasher , 776 S.W.2d 567,

570 (Tex. 1989) ("All assertions of opinion are protected by the first amendment of

the United States Constitution and article I, section 8 of the Texas Constitution.").

Finally, Vice's statement in the April 13 letter that "[t]he NPOAN Board

promises to increase our monthly assessments if a threatened lawsuit goes forward"

is likewise true and unactionable in that it republishes information from the NPOAN

newsletter authored and distributed by the NPOAN Board of Directors, of which

Kasprzak was president at the time. The NPOAN newsletter stated that the letter

from the Board advised homeowners "that if this matter goes forward into litigation

it will be extremely costly and could result in a special assessment or an increase in

the monthly maintenance fees to cover the additional legal fees."

We conclude the three publications challenged in Vice and Slotter's motion for

summary judgment were not defamatory.

We sustain Vice and Slotter's second issue.

Because we conclude that none of the challenged publications were actionable

as defamatory statements, we conclude that the trial court erred in denying Vice and

Slotter's motion for summary judgment on the Kasprzaks' defamation claims.

Because this issue is dispositive, we need not reach Vice and Slotter's remaining

grounds for reversing the trial court's ruling denying summary judgment on

defamation. See Tex. R. App. 47.1. (11)

Invasion of Privacy and Conspiracy

In their eighth issue, Vice and Slotter argue that the Kasprzaks' invasion of

privacy claim fails as a matter of law because it was based solely on the publication

of the allegedly defamatory statements. (12) See Gill v. Snow , 644 S.W.2d 222, 223-24

(Tex. App.--Fort Worth 1982, no writ) (stating elements of invasion of privacy by

intrusion are (1) intentionally intruding (2) upon solitude of another or his private

affairs (3) which is highly offensive to reasonable person). In their ninth issue, Vice

and Slotter argue that the Kasprzaks' conspiracy claim fails because they presented

no evidence of the commission of an underlying tort. See Tilton v. Marshall , 925

S.W.2d 672, 681 (Tex. 1996) (stating that defendant's liability for conspiracy depend

on participation in some underlying tort). In their sixth issue, Vice and Slotter argue,

in addition, that Patricia and Katherine Kasprzak lack standing to bring this suit

because they have not been defamed or otherwise harmed by the publications they

complain of.

Because we have already held that the statements at issue in this case were not

actionable as defamatory statements as a matter of law against Daniel Kasprzak and

were not "of and concerning" Patricia or Katherine Kasprzak, and because the

Kasprzaks rely on the existence of defamatory statements as the basis for claiming

they were harmed by Vice's and Slotter's invasion of their privacy and conspiracy,

we conclude that those derivative claims also fail as a matter of law. See Patterson

v. Planned Parenthood of Houston , 971 S.W.2d 439, 442 (Tex. 1998) (identifying

standing as a threshold issue that implicates subject matter jurisdiction and

emphasizing need for concrete injury to plaintiff for justiciable claim to be presented).

Therefore, we conclude that the trial court erred in denying Vice and Slotter's

motions for summary judgment on the Kasprzaks' invasion of privacy and conspiracy

claims.

We sustain Vice and Slotter's sixth, eighth, and ninth issues.

Conclusion

We reverse the trial court's order denying Vice and Slotter's motions for

summary judgment and render judgment that appellees Patricia C. Kasprzak and

Katherine D. Kasprzak be dismissed for lack of standing and that appellee Daniel J.

Kasprzak take nothing on his claims against appellants.

Evelyn V. Keyes

Justice

Panel consists of Justices Jennings, Keyes, and Higley.

1.

Appellants claim that they have been sued for a letter authored by Lisa Worthen that

they did not write, while appellees claim that they are not suing appellants based on

Worthen's letter.

2. Kasprzak performed pro bono legal work to help form the homeowners association.

3. Throughout the record, the developer of Newport is referred to by the parties

interchangeably as "Rampart," "Rampart Capital Corporation," "Rampart Proprties"

(which appears to be a subsidiary of Rampart Capital Corporation), or J.H. (Jim)

Carpenter (the President of Rampart Capital Corporation). None of the Rampart

entities or officers were made parties to this litigation. We refer to these entities

collectively as "Rampart" except when necessary to refer to Carpenter as an

individual or to Newport Fund, a related company owned by Carpenter.

4. The original developer of the property went bankrupt. Rampart purchased certain

assets that entitled it to collect maintenance fees from the property owners of

Newport. Daniel Kasprzak's representation of Newport Fund began in 2001.

5. The Kasprzaks contend on appeal,

[Vice's and Slotter's] motions did not focus upon "the editorials and articles,"

but upon the causes of action asserted by [the Kasprzaks] generally. The

[Kasprzaks'] causes of action for defamation are not based solely upon "the

editorials and articles," but upon numerous alleged acts of defamatory conduct

committed by [Vice and Slotter], both individually and in concert with one

another. A finding that the "editorials and articles" were substantially true

would not be dispositive of [the Kasprzaks'] defamation claims, as the

"editorials and articles" are but the tip of the iceberg with respect to the

evidence of actionable conduct by [Vice and Slotter].

We disagree. The Kasprzaks were given ample time in discovery to identify the bases

of their defamation claims, yet their supplemental defamation claims identified only

the statements challenged by Vice and Slotter's motion for summary judgment. Rule

166a(i), governing no-evidence motions for summary judgment, provides, "After

adequate time for discovery, a party without presenting summary judgment evidence

may move for summary judgment on the ground that there is no evidence of one or

more essential element of a claim or defense on which an adverse party would have

the burden of proof at trial." Tex. R. Civ. P. 166a(i); see also Bendigo v. City of

Houston , 178 S.W.3d 112, 114 (Tex. App.--Houston [1st Dist.] 2005, no pet.) (citing

Jackson v. Fiesta Mart, Inc. , 979 S.W.2d 68, 70-71 (Tex. App.--Austin 1998, no

pet.)). "The motion must state the elements as to which there is no evidence. The

court must grant the motion unless the respondent produces summary judgment

evidence raising a genuine issue of material fact." Tex. R. Civ. P. 166a(i); Sw. Elec.

Power Co. v. Grant , 73 S.W.3d 211, 215 (Tex. 2002).

The Kasprzaks identified no additional allegedly defamatory statements until they

filed their response to Vice and Slotter's motion for summary judgment. They then

set out additional conclusory allegations in affidavits attached to the response, none

of which are supported by proof apart from the allegation itself, alluded to these

allegations in their response as a refutation of Vice and Slotter's claim that there was

no evidence of malice, and then included these allegations in their brief on appeal as

grounds for denying summary judgment on their defamation claims.

Summary judgments may be reversed only on issues expressly set out in the motion

or response. Tex. R. Civ. P. 166a(c) . Issues the non-movant contends avoid the

movant's entitlement to summary judgment must be expressly presented by written

answer to the motion or by other written response, and are not expressly presented by

mere reference to the summary judgment evidence. McConnell v. Southside Indep.

Sch. Dist. , 858 S.W.2d 337, 340, 342 (Tex. 1993); City of Houston v. Clear Creek

Basin Authority , 589 S.W.2d 671, 678 (Tex. 1979). Moreover, c onclusory and self-serving affidavits submitted as summary judgment evidence by either the movant or

the non-movant are not counted as summary judgment evidence. See Tex. R. Civ. P.

166a(f) (supporting affidavit must set forth such facts as would be admissible in

evidence); Grant v. Laughlin Environmental, Inc. , No. 01-07-00227-CV, 2009 WL

793638 , at *15 (Tex. App.--Houston [1 st Dist.] March 26, 2009, pet. denied) (not

designated for publication); Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc. ,

106 S.W.3d 118, 126 (Tex. App.--Houston [1 st Dist.] 2002, pet. denied). "A

conclusory statement is one that does not provide the underlying facts to support the

conclusion." Id. An affidavit that makes self-serving, conclusory statements without

any underlying factual detail cannot support summary judgment. Grant, 2009 WL

793638 , at *15; Haynes v. City of Beaumont , 35 S.W.3d 166, 178 (Tex.

App.--Texarkana 2000, no pet.). Therefore, the Court will not entertain the

Kasprzaks' contention on appeal that defamatory statements other than those

identified by them in their answers to interrogatories and on which Vice and Slotter

based their motion for summary judgment preclude summary judgment on the

Kasprzaks' cause of action for defamation.

6.

The fourth document as to which summary judgment was denied, the Worthen letter,

failed to reference any of the Kasprzaks, including Daniel. Rather, it questioned

NPOAN board actions and urged attendance at the April 13, 2006 homeowners

meeting. Vice and Slotter challenge the propriety of summary judgment on this letter

in their fifth issue. However, because the Kasprzaks deny they are seeking damages

for defamation against Vice and Slotter based on this letter, we do not address Vice

and Slotter's fifth issue separately.

7.

The Kasprzaks have produced summary judgment evidence that the NPOAN Board

approved Kasprzak's serving as NPOAN President while representing the developer

in the suits against homeowners, but they have produced no evidence that this

information was shared with the homeowners prior to the April 13, 2006 homeowners

meeting.

8.

The Texas Supreme Court has noted that, with respect to proof of the falsity of

allegedly defamatory statements, "the burden of proof on a plaintiff who is not a

public official or a public figure suing media defendants is an open question."

Bentley , 94 S.W.3d at 586, n.63 . Here, however, the plaintiff, Kasprzak, is a public

figure and he is suing the defendants over statements published in the local media.

Therefore, the rule in Bentley applies.

9. The test is the same whether the burden of proving falsity rests on the plaintiff or on

the defendant proving the affirmative defense of substantial truth. McIlvain , 794

S.W.2d at 15-16 (applying substantial truth standard to proof of falsity with buren on

public figure); see Grotti , 188 S.W.3d at 774-75 (applying substantial truth standard

to affirmative defense to defamation claim with burden of proof on defendant under

Tex. Civ. Prac. & Rem. Code Ann. § 73.005 ). However, it is error to hold that the

defendants are required to prove substantial truth as an affirmative defense against a

defamation claim brought against them by a public official or public figure. Bentley ,

94 S.W.3d . at 568-87. This is in contrast to suits brought by private individuals, in

which truth is an affirmative defense to slander. Id . at 586, n.63; see Randall's Food

Mkts., Inc. v. Johnson , 891 S.W.2d 640, 646 (Tex. 1995); see also Tex. Civ. Prac.

& Rem. Code Ann. § 73.005 (Vernon 2005) ("The truth of the statement in the

publication on which an action for libel is based is a defense to the action").

10.

Appellees' Response to Appellants' Brief contains numerous objections to Vice and

Slotter's summary judgment evidence. In the absence of a written order or implicit

ruling by the trial court, objections to summary judgment evidence are waived and

allegedly inadmissible summary judgment evidence remains a part of the summary

judgment record. Delfino v. Perry Homes, Jt. V. , 223 S.W.3d 32, 35 (Tex.

App.--Houston [1st Dist.] 2006, no pet.); In re Estate of Schiwetz , 102 S.W.3d 355,

360-61 (Tex. App.--Corpus Christi 2003, pet. denied); Nugent v. Pilgrim's Pride

Corp. , 30 S.W.3d 562, 567 (Tex. App.--Texarkana 2000, pet. denied).

11.

In their fourth issue, Vice and Slotter argue that no genuine issue of material facts

exists as to malice. In their seventh issue, Vice and Slotter argue that the Kasprzaks

presented no evidence of pecuniary damages.

12.

Vice and Slotter argue that the Kasprzaks' reliance on the publication of allegedly

defamatory statements as the sole basis for the invasion of privacy by intrusion into

seclusion claim means that their claim is actually one for false light invasion of

privacy, which is a tort that Texas courts do not recognize as a cause of action. See

Cain v. Hearst Corp. , 878 S.W.2d 577, 579 (Tex. 1994). We do not address this

aspect of their eighth issue because we determine that the Kasprzaks' claim fails

regardless of whether it was one for false light invasion of privacy, as argued by Vice

and Slotter, or invasion of privacy by intrusion into seclusion, as plead by the

Kasprzaks.