02-08-00400-CV pet denied Sep. 2009

2nd district (
02-08-00400-CV, ___ SW3d ___, 07-02-09, pet. denied Sep. 2009)(libel per se, actual malice)

                                        COURT OF APPEALS

                                              SECOND DISTRICT OF TEXAS

                                                             FORT WORTH

                                     NO. 2-08-400-CV

JACK D. BROCK                                                                  APPELLANT


JULIE FREDERICK TANDY                                                        APPELLEE






                                       I.  Introduction

In this accelerated interlocutory appeal,[2] Appellant Jack D. Brock complains that the trial court erred by
denying his motion for traditional and no evidence summary judgment in favor of Appellee Julie Frederick
Tandy.  While we deny Brock=s motion for rehearing, we withdraw our earlier opinion and judgment of May
14, 2009, and substitute the following.  We affirm.

                       II.  Factual and Procedural Background

This defamation action arose from disputes between Brock and the City of Keller (ACity@) regarding
Brock=s real propertyCspecifically, a subdivision plat that Brock had originally submitted for development in
1999, but that was signed in 2004; the condemnation of an easement by the City for water drainage across
some of Brock=s property in 2007; and the denial, at some point before May 12, 2007, of Brock=s
application to change zoning on some of his property so he could put a RaceTrac gas station on it.[3]  
Tandy was elected mayor in 2003 and 2005; she was not reelected in 2007.

Brock paid for the following advertisement (the AAd@), along with a copy of the controversial plat, to run in
The Keller Citizen, a local newspaper, on May 4, 2007, eight days before the mayoral election that Tandy
lost.  The Ad stated:

This is a copy of the final plat of West Park Addition in Keller.  I originally had an approved plat in 1999 that
was destroyed by a corrupt City Hall.  I could not[4] prove that I had received approval, and so had a new
plat made in 2004.  In the signature and dedication section, you will see my name notarized and dated June
3, 2004.  You will see that the plat is shown to have been recorded June 18, 2004, at the county courthouse
and is located in Cabinet A, slide 9330.  In the box under the county clerk=s name, our own mayor=s
signature appears dated June 15, 1999.  The only problem is she wasn=t mayor in 1999!  Like me, she
really signed it in June 2004, but backdated the signatures to cover up the corruption.  More than
corruption, this amounts to fraud.  And recording a fraudulent document is a felony.

In the past few months, citizens of Keller have witnessed flooding on Whitley Road that has wrongly been
blamed on me.  The blame should be directed at Mayor Tandy and Councilman Steve Trine who refused to
meet with me and were too busy to find out what mistakes the City Manager and his staff made to cause this
mess.  Only two council members wanted to know the truth.  The truth is the City Manager and three
members of his staff made a verbal agreement with me for an easement in June of 2004.  But our mayor and
her friends voted in March 2007 to steal it the old-fashioned wayCeminent domain.  They decided to take my
land by force now and face the damage suit later.  The city ruined my pasture by condemning a strip of land
through the middle of my property, turning my one piece of land into two separate parcels that are no longer
connected.  Furthermore, by putting a drainage ditch through the middle of my property, they have ruined
what were to be 20 future residential lots.  And the ditch they have put in doesn=t even drain, but serves as
a breeding ground for mosquitoes instead.

Last week I instructed my attorney to take a copy of the falsified plat to the Tarrant County District Attorney
to have the following charges against the Mayor and staff investigated:  1) committing fraud and recording
falsified legal documents, 2) conspiracy to deny me the use of my property, 3) violation of state and city
water laws, and 4) trespassing on private property by diverting controlled ground water onto my property.

In the past, anytime the [C]ity of Keller has needed anything, I have willingly given.  I have given my time.  I
have given my money.  I have given road frontage and sewer easements free of charge.  All the [C]ity has
ever had to do was ask.  After living here for 80 years, it is a sad day when I have to go to the county district
attorney=s office about the corruption in our city.

At the bottom of the Ad is the following legend, AWritten and paid for by Jack Brock.@

Tandy sued Brock, claiming libel per se.  Brock moved for a traditional and no evidence summary judgment.  
The trial court denied Brock=s motion, and this appeal followed.

                                       III.  Discussion

In his first issue, Brock argues that the summary judgment evidence conclusively shows that the factual
assertions that Tandy complains of were not defamatory and that there is no evidence that the assertions
were defamatory.  In his second and third issues, he presents the same arguments with regard to the truth
of the assertions and whether he made them with actual malice.

A.  Standard of Review

When a party moves for summary judgment under both rules 166a(c) and 166a(i), we will first review the trial
court=s judgment under the 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 under that burden, then
there is no need to analyze whether the movant=s summary judgment proof satisfied the less stringent rule
166a(c) burden.  Id.

Under rule 166a(i), the party without the burden of proof may, without presenting evidence, move for
summary judgment after an adequate time for discovery on the ground that there is no evidence to support
an essential element of the nonmovant=s claim or defense.  Tex. R. Civ. P. 166a(i).  The motion must
specifically state the elements for which there is no evidence.  Id.; Johnson v. Brewer & Pritchard, P.C., 73 S.
W.3d 193, 207 (Tex. 2002).  The trial court must grant the motion unless the nonmovant produces summary
judgment evidence that raises a genuine issue of material fact.  See Tex. R. Civ. P. 166a(i) & cmt.; Sw. Elec.
Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).

When reviewing a no evidence summary judgment, we examine the entire record in the light most favorable
to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion.  
Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006).  If the nonmovant brings forward more than a scintilla of
probative evidence that raises a genuine issue of material fact, then a no evidence summary judgment is not
proper.  Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.CSan Antonio 1998, pet. denied).  We
review a no evidence summary judgment for evidence that would enable reasonable and fair‑minded jurors
to differ in their conclusions.  Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (citing City of Keller v.
Wilson, 168 S.W.3d 802, 822 (Tex. 2005)).

B.  Libel per se

As a public official when Brock placed the Ad, Tandy has the burden to prove that Brock published a false
statement of fact that was defamatory concerning her while acting with actual malice regarding the
statement=s truth.  See Bentley v. Bunton, 94 S.W.3d 561, 579, 586 (Tex. 2002); WFAA‑TV, Inc. v.
McLemore, 978 S.W.2d 568, 571 (Tex. 1998), cert. denied, 526 U.S. 1051 (1999).  Tandy sued Brock
claiming libel per se, i.e., that the printed words were so obviously hurtful to her that they require no proof of
their injurious character to make them actionable.  See Clark v. Jenkins, 248 S.W.3d 418, 437 (Tex. App.
CAmarillo 2008, pet. denied), petition for cert. filed, 77 U.S.L.W. 3531 (U.S. Mar. 5, 2009) (No. 08-1122).  
On appeal, Brock asserts that four key statements in the Ad were not defamatory, were not false, and were
not made with actual malice.[5]

1.  Defamatory Meaning

Brock argues that Tandy had no defamation claim based on the following four statements:

(1) ALike me, she really signed it in June 2004, but backdated the signature to cover up the corruption.  
More than corruption, this amounts to fraud.  And recording a fraudulent document is a felony.@

(2) AThe blame should be directed at Mayor Tandy and councilman, Steve Trine who refused to meet with
me and were too busy to find out mistakes the City Manager and his staff made that caused this mess.@

(3) ABut our mayor and her friends voted in March 2007 to steal [the easement] the old fashioned
wayCeminent domain.@

(4) ALast week I instructed my attorney to take a copy of the falsified plat to the Tarrant County District
Attorney to have the following charges against the mayor and staff investigated:  1) committing fraud and
recording falsified legal documents, 2) conspiracy to deny me the use of my property, 3) violation of state
and city water laws, and 4) trespassing on private property by diverting controlled ground water onto my

Although Tandy made reference to these statements in her petition, she also reminds the court that we must
read the Ad in its entirety and not just consider the individual statements in isolation.[6]

Libel is defamation expressed in written form that tends to injure a living person=s reputation and thereby
expose her to public hatred, contempt or ridicule, or financial injury or to impeach her honesty, integrity,
virtue, or reputation.  See Tex. Civ. Prac. & Rem. Code Ann. ' 73.001 (Vernon 2005).  Whether a publication
is capable of being defamatory is initially a question of law to be determined by the court.  New Times, Inc. v.
Isaacks, 146 S.W.3d 144, 155 (Tex. 2004), cert. denied, 545 U.S. 1105 (2005); Turner v. KTRK Television,
Inc., 38 S.W.3d 103, 114 (Tex. 2000).  To make this determination, the trial court should consider whether
the words used are reasonably capable of defamatory meaning by considering the allegedly defamatory
statement as a whole.  See Musser v. Smith Prot. Servs., Inc., 723 S.W.2d 653, 654B55 (Tex. 1987).  The
determination is based on how a person of ordinary intelligence would perceive the entire statement.  See
Bentley, 94 S.W.3d at 579; Harvest House Publishers v. Local Church, 190 S.W.3d 204, 210 (Tex. App.
CHouston [1st Dist.] 2006, pet. denied), cert. denied, 127 S. Ct. 2987 (2007).  And even if individual
statements considered in isolation are literally true or non‑defamatory, a publication can convey a false and
defamatory meaning by omitting or juxtaposing facts.  See Turner, 38 S.W.3d at 114B15.  A publication as a
whole may be defamatory if the publication creates a false impression.  See id. at 117B18.

Additionally, as Tandy was a public official at the time, the statements must be of such character that, if they
were true, would have subjected her to removal from office, to criminal charges, or to imputation of official
dishonesty or corruption.  See Bentley, 94 S.W.3d at 582 (AAccusing a public official of corruption is
ordinarily defamatory per se.@); Brasher v. Carr, 743 S.W.2d 674, 677 (Tex. App.CHouston [14th Dist.]
1987) (AStatements that are of such a character as, if true, would subject a public official to removal from
office or charge him with a crime are libelous per se.@), rev=d on other grounds, 776 S.W.2d 567 (Tex.

In its entirety, a reasonable person could interpret the Ad=s overall gist to be that a Acorrupt City Hall@ (via
its corrupt employees) destroyed Brock=s West Park III plat some time between 1999 and 2004, after it had
been approved; that Tandy committed a felony by backdating her signature in 2004 to cover up the
corruption involved in destroying Brock=s original plat (backdating rendering the plat fraudulent) and by
then recording the fraudulent plat; that Tandy was also to blame for Brock flooding Whitley Road because
she refused to meet with him and was too busy to look into mistakes caused by City employees (allowing
them to run amuck); and that in March 2007, Tandy voted to steal his land via eminent domain, ruining his
pasture and his development plans, after conspiring to deny him the use of his property, violating state and
city water laws, and trespassing on his property by diverting controlled ground water onto it.[7]

A reasonable person could view the Ad as appearing to impeach Tandy=s honesty or reputation and to
expose her to public hatred, contempt, or ridicule.  See Tex. Civ. Prac. & Rem. Code Ann. ' 73.001; Isaacks,
146 S.W.3d at 155; Turner, 38 S.W.3d at 114B15; Musser, 723 S.W.2d at 654B55.  Furthermore, the Ad
tends to impute official dishonesty and corruption to Tandy.  See Bentley, 94 S.W.3d at 582; Brasher, 743 S.
W.2d at 677.  Therefore, we conclude that the publication as a whole, as well as at least one of its individual
statements,[8] is capable of being defamatory, and we overrule Brock=s first issue.[9]

2.  Actual Malice

To establish actual malice, the plaintiff must prove that the defendant published a defamatory falsehood
Awith knowledge that it was false or with reckless disregard of whether it was false or not.@  WFAA‑TV, 978
S.W.2d at 573 B 74 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279B80, 84 S. Ct. 710, 726
(1964)).  Reckless disregard is a subjective standard that requires the plaintiff to bring forth evidence that
the defendant entertained serious doubts as to the truth of the publication at the time it was published.  
Hearst Corp. v. Skeen, 159 S.W.3d 633, 637 (Tex. 2005).  A presentation of facts that is misleading, even
negligently so, will not constitute a Acalculated falsehood@ unless those facts are published with knowledge
or strong suspicion by the publisher that they are misleading.  See Turner, 38 S.W.3d at 120.

Actual malice focuses on the defendant=s state of mind, particularly his attitude toward the truth of what he
reported, which a plaintiff can prove through objective evidence about the publication=s circumstances and
the defendant=s conduct at the time of publication.  Id.; WFAA‑TV, 978 S.W.2d at 573B74; see also Bentley,
94 S.W.3d at 591, 596.  When the defendant=s words lend themselves to more than one interpretation, the
plaintiff must establish either that the defendant knew that the words would convey a defamatory message
or that he had reckless disregard for their effect.  Isaacks, 146 S.W.3d at 162.  Publications alleged to be
defamatory must be viewed as a wholeCincluding accompanying statements, headlines, pictures, and the
general tenor and reputation of the source itself, and we consider the actual malice issue within this context.  
See City of Keller, 168 S.W.3d at 811 (citing Isaacks, 146 S.W.3d at 158B59, for the proposition, with regard
to a no evidence assertion, that legal sufficiency cannot disregard parts of a publication, considering only
false statements to support a plaintiff=s verdict or only true ones to support a defense verdict).  And, as the
Supreme Court of Texas has stated:

To disprove actual malice, a defendant may certainly testify about his own thinking and the reasons for his
actions, and may be able to negate actual malice conclusively.  But his testimony that he believed what he
said is not conclusive, irrespective of all other evidence.  The evidence must be viewed in its entirety.  The
defendant=s state of mind canCindeed, must usuallyCbe proved by circumstantial evidence.  A lack of care
or an injurious motive in making a statement is not alone proof of actual malice, but care and motive are
factors to be considered.  An understandable misinterpretation of ambiguous facts does not show actual
malice, but inherently improbable assertions and statements made on information that is obviously dubious
may show actual malice.  A failure to investigate fully is not evidence of actual malice; a purposeful
avoidance of the truth is.  Imagining that something may be true is not the same as belief.

Bentley, 94 S.W.3d at 596 (internal citations omitted).

a.  Brock=s Testimony

Tandy attached Brock=s deposition to her response to his motion for summary judgment.  Brock testified
that he did not need to research the facts in the Ad because they were known to him personally,[10] and he
gave the following explanation:

Q. Okay.  Did you intend the readers of The Keller Citizen to understand the meaning of this [A]d, that it was
about corruption, that it was about fraud?

A. Yes, because every week in The Keller Citizen[,] the City Manager had theChad the Assistant City
Manager . . . go down there and tell them that the only reason that the water was being flooded on Whitley
Road by me was because of some RaceTrac gasoline [station] that was rejected,[11] and the final blow on
this is when they sat up here andCwith Julie Tandy as mayor and signature of the City of Keller to sit up
here and took a vote to condemn my property when they are illegally putting water on me.

He testified that he had never met Tandy prior to his deposition, and that with regard to the Ad, A[t]his was
not a personal attack on Julie Tandy as a person, only as the signature for the City of Keller.@  He also
testified that the mayoral election date had nothing to do with the date that he ran the Ad.

Brock admitted that he assumed that Tandy knew about the backdating because she was the mayor.[12]  He
did not try to find out who had done the backdating.  He testified that he assumed that the City had
destroyed the 1999 plat because they had no record of it when he asked for it.[13]  He admitted that he did
not research whether recording a fraudulent document is a felony, and he stated, AI just know that it=s
fraudulent, and you go down there and record aCa document that=s fraudulent is a felony.@  He also stated
that he would call that action a felony whether it was or was not, and that, with regard to his Ad, Aas far as
[he was] concerned, it is all fact,@ and that he did not imagine it.

Brock gave the following testimony about whether Tandy refused to meet with him:

Q. Isn=t it true that they offered to meet with you?

A. Only if I would take and give them an easement.

Q. And you refused?

A. I have a letter from the City Attorney, stating the only way that they would meet with me is if I went ahead
and gave them an easement to take illegal water across my property and trespass on me.[14]

Q. So when you say they refused to meet with you, that isn=t true, is it?

A. They wouldn=t meet with me unless the stipulations went with it.

Q. So they would meet with you. . . . if you met the stipulation.

A. I can=t meet those stipulations.[15]

With regard to the vote to condemn his property, Brock explained that Aand her friends@ referred to the
City Council, but he acknowledged that Tandy, as mayor, did not cast a vote on the decision to condemn the
easement.  He faulted Tandy for not behaving the way he had when he was mayor.[16]

With regard to his statement about instructing his attorney to take the plat to the Tarrant County district
attorney, Brock gave the following testimony:

Q. . . . When you put that in the ad, did you intend for people reading it to understand that Julie Tandy had
committed fraud and recorded falsified legal documents?

A. The City of Keller and staff. . . . The mayor and staff investigated. . . . I wanted to understand that I was
going to have it investigated by the DA.

. . . .

Q. And didn=t you want them to believe it was true?

A. That would be up to the individual . . . how they take it.  If you=re being investigated[, that] doesn=t mean
that you=re guilty of anything. . . . I wanted them to believe that I was mad about this, about getting my
property flooded. . . . I wanted the readers to believe it that it was going to be investigated to see if it was

. . . .

Q. What was your intent when you attributed these four criminal acts, committing fraud and recording
falsified legal documents, conspiracy to deny me the use of my property, violation of state and city water
laws, trespass on private property by diverting controlled water onto my property, you attribute those four
acts that you say you want investigated to Mayor Tandy.  Did you intend for the readers to believe that she
had committed those acts?

A. Not that she committed it.

Q. What did you intend for them to believe?

A. That the City was committing fraud, recording falsified documents.  I know she didn=t go down there and
record it.  Conspiracy to deny me the use of my property.

Q. Did sheCdid she do that?

A. She didn=tCno, she didn=t do that, but the City did. . . . And violate state and city water laws.  It=s on the

Q. So you have now gone through those four items and said Julie Tandy didn=t do any of those things,

A. No, I said the City did. . . . And she is theCpart of the City.

Q. So when you say you want to have the following charges against the mayor and staff investigated . . . . is
it your testimony that the mayor committed those acts?

A. I want the mayor and the staff investigated to see which one of those acts she=s guilty of and the City
staff, and by Aher@ I mean the City.

Q. And did you intend for the reader to believe that she had committed them?

A. No.

Q. Well, earlier in the ad and earlier in your testimony today you stated that she did commit fraud by
recording a fraudulent document.

A. Mm-hmm. . . . I said that when you take and record something like this, it=s fraud.

Q. So it=s your testimony that Julie Tandy did commit fraud?

A. The mayor committed fraud.

Q. Mayor Julie Tandy?

A. Yes.  [Emphasis added.]

Brock testified that he had not thought about or looked into whether accusing Tandy of a felony related to
her fitness for office or whether she could be removed from office, but that he did not intend to impeach her
reputation or injure her in her office, although he acknowledged that injury to her reputation Acould be one
effect of it.@  He also testified that he did not bother to investigate whether Tandy knew that her signature
was backdated, because A[a]s far as [he] was concerned, it was done by the City.@

Brock testified that he had known James Carson, a Keller City Council member, for six to eight months, that
Carson had visited his home, and that he spoke with Carson on the phone probably three to four times,
although he did not keep track.[17]  He denied remembering any conversations with Carson discussing
methods to unseat Tandy as mayor.  He acknowledged receiving a copy of the May 4, 2007 memo from the
City Manager to the mayor and City Council about the Ad from Carson.[18]

b.  Carson=s Testimony

Tandy attached Carson=s deposition to her response to Brock=s motion for summary judgment.[19]  Carson
testified that while he was on the Keller City Council, he had conversations with Brock about the plat and
asked Otis Welch, one of the other signatories, about the backdating.  He learned from Welch (who learned
from someone at Town Hall) that it was customary Ato date the plat whenever it was actually approved by
the Planning & Zoning and whenever it was approved by the City Council,@ and that was all the
investigation he or Welch did.

Carson testified that he received a copy of the Ad from Brock=s son before it was published, and he gave
the following testimony about Brock and the Ad:

Q. . . . So early 2007, [Brock] tells you he intends to publish the plat.  What is your response to that?

A. AWhy?@  MyCI gave him my interpretation of the plat, which was that, AYes, [Brock], it could be what you
say it is.  But it=s also very likely that it=s a simple mistake.@ . . . And his reply back to that was, AIt can=t be.

Q. Okay.  So his interpretation is what?  When he comes to tell you about it in early >07, what does he say
his interpretation of the plat is?

A. He has repeatedly made the charge that this plat represents fraud, deliberate fraud.

Q. And your response is?

A. AYou can=t prove it, [Brock].@ . . . What my thought was, was that the explanation that this is customary
is just wrong, and whoever wrote the dates in was operating under the erroneous assumption that it is
customary to backdate.  That=sCthat was what I considered the most likely explanation . . . of this plat.

Carson estimated that he had this conversation with Brock two or three times, and he testified that Brock
could not fathom that it could be just a simple mistake and that Brock was adamant that it was not.  He
testified that he encouraged Brock not to run the Ad, that he never asked Tandy whether she knew her
signature had been backdated, and that, to his knowledge, Brock never asked her either.  Carson also
testified that, to his knowledge, there was never any conspiracy to deny Brock the use of his property, and
that he thought Brock ran the Ad to expose what Brock considered fraud and to cause Tandy to lose votes
in the mayoral election, based on the timing of the publication and his conversations with Brock.  Carson
testified that although he voted to use eminent domain to take the easement on Brock=s land, he regretted
that vote.

Carson also admitted drafting the following language of a response to Tandy=s open records request:

Though not required by any law, you may also inform Ms. Tandy that communications by and between Jim
Carson and Jack Brock or any of his business associates can be generally classified as either 1) Jim Carson
listening to Jack Brock=s telling or retelling of the real or perceived wrongs perpetrated by the City of
KellerCparticularly City Manager Lyle DresherCagainst Jack Brock, his family, and/or his property, or 2) Jim
Carson and Jack Brock discussing (but not always agreeing on) methods to unseat Mayor Julie Tandy and

[Emphasis added.] He testified that his conversations with Brock about unseating Tandy were different from
their conversations about the Ad.  Carson is the publisher and primary editor of a web log (Ablog@) named
AKeller City Limits.@  He posted the draft response on his blog.

c.  Analysis

Less than a scintilla of evidence exists when the evidence is so weak that it does nothing more than create a
mere surmise or suspicion of a fact.  Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).  More than
a scintilla of evidence exists when the evidence would enable reasonable and fair-minded people to reach
different conclusions.  Ford Motor Co., 135 S.W.3d at 601; Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d
706, 711 (Tex. 1997).  A genuine issue of material fact is raised by presenting evidence on which a
reasonable jury could return a verdict in the nonmovant=s favor.  Moore, 981 S.W.2d at 269.

Although Brock stated in his affidavit that he believed the contents of the Ad at the time that he published it,
Tandy presented evidence from Brock=s deposition that he knew at least two of his statements were false (i.
e., that Tandy did not actually vote on the decision to condemn the easement and that Tandy did not record
the allegedly fraudulent plat); that at least one of his statements was not entirely true (i.e., that Tandy
offered to meet with him, but with conditions he found unacceptable); and that he acted with reckless
disregard as to the effect of his words.  See Isaacks, 146 S.W.3d at 162; WFAA-TV, 978 S.W.2d at 571.

Furthermore, Tandy presented evidence that Brock acted with a lack of care with regard to the truth or
falsity of his statements in that he did no research on whether Tandy backdated the plat (although he was
willing to give the benefit of the doubt to one of the other signatories) and whether recording a fraudulent
document was actually a felony; that Brock had a motive to have Tandy replaced as mayor; and that Brock
refused to consider any other possibility besides fraud, even when presented with that possibility by
Carson.  See Bentley, 94 S.W.3d at 591, 596.  Therefore, we conclude that the trial court did not err by
denying Brock=s motion for summary judgment because Tandy presented more than a scintilla of evidence
of actual malice, and we overrule Brock=s third issue.

                                       IV. Conclusion

Having overruled Brock=s dispositive issues, we affirm the trial court=s order, and we order Brock to pay
Tandy=s court costs and reasonable attorney=s fees incurred in this appeal, to be determined by the trial
court.  See Tex. Civ. Prac. & Rem. Code Ann. ' 51.015 (Vernon 2008).  We grant in part and deny in part
Brock=s motion for judicial notice, and we deny his supplemental motion for judicial notice.




DELIVERED: July 2, 2009


[1]See Tex. R. App. P. 47.4.

[2]See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(6) (Vernon 2008).

[3]In 1991, Brock began the process of developing some of his property into a residential subdivision.  In
1992, the City approved the plat for the first phase, West Park I, and the installation of water and sewer for
all phases of the West Park Subdivision development.  The City subsequently approved West Park II=s plat.  
At some point between 1992 and 1999, the events leading to the dispute over the water drainage easement
began.  In 1999, the City approved West Park III=s plat.

In 2001, Brock discovered that his plat for West Park III was unsigned.  Brock also began damming the inlet
into his drainage ditch to prevent the City from using it.  The City eventually filed a condemnation action to
acquire a drainage easement.  A unanimous City Council voted to condemn the easement on Brock=s

[4]Brock testified that The Keller Citizen printed his article with a typographical error, and that it should have
read, AI could prove that I had received approval, and so had a new plat made in 2004.@

[5]Summary judgment cannot be granted except on the grounds expressly presented in the motion.  
Johnson, 73 S.W.3d at 204; Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997).  Brock asks
us to reverse the trial court=s judgment denying his motion for summary judgment and to render judgment
on his behalf.  However, although Brock argues in his second issue that A[t]he summary judgment evidence
conclusively demonstrates that the factual assertions complained of by [Tandy] were true or that there is no
evidence that they were false,@ he did not raise this as a ground for summary judgment in his motion.  
Therefore, we may not address this issue for the first time on appeal.  See Johnson, 73 S.W.3d at 204;
Martinez, 941 S.W.2d at 912.

[6]Although Brock complains that Tandy did not plead a complaint to interpret the Ad and that she cannot
now complain about imputed assertions of fraud and corruption, Tandy=s petition is very broad, pleading
defamation with reference to both specific statements and the Ad in general, stating, ADefendant
intentionally published a written communication stating verifiable facts and accusations relating to Tandy in
her official capacity as Mayor . . . .  The Ad was unambiguous and the statements therein were false and
made with actual malice and with knowledge of and reckless disregard for their falsity.@  She attached a
copy of the Ad to her petition, along with Brock=s deposition.

[7]Tandy testified that she was not aware of any controversies between the City and Brock regarding the
Phase III plat prior to May 4, 2007.  She stated in her affidavit that she did not fill in the date after her
signature when she signed the plat in 2004.  She also testified that she did not vote on the council=s
decision to condemn Brock=s property and that the council vote was unanimous.  Tandy testified that her
reputation in the community had been damaged by the Ad, based on feedback and comments that she
received, and that she had never met Brock before his deposition.

[8]Specifically, statement (1), which accuses Tandy of official dishonesty, could appear to a reasonable
person to be defamatory.

[9]Brock has requested by motion that we take judicial notice of the copies of the City=s charter and article 4
of the City=s Unified Development Code, and by supplemental motion that we take judicial notice of the
copies of article 4 of the City=s Unified Development Code and section 16-204 of the City=s Subdivision
Ordinance Number 571, dated March 29, 1989, that he supplied to the court.  We grant his original motion
in part, as to the charter, because he presented this same request to the trial court.  We deny the remainder
of his original motion.

Even if we were to grant his motion and supplemental motion as to article 4, which he did not present to the
trial court, in light of our resolution above with regard to the imputation of official dishonesty, we need not
also address his argument that, although Tandy allegedly violated article 4, she failed to show that
backdating was a basis to remove her from her office as mayor.  See Tex. R. App. P. 47.1; see also Tex.
Penal Code Ann. ' 37.10(a)(1)B(3), (c)(1) (Vernon Supp. 2008) (defining tampering with governmental
records as a state jail felony when committed with intent to defraud), and Keller, Tex., Charter art. III, ' 3.02
(2008) (stating that A[a] member of the council . . . who is convicted of a felony while in office shall
immediately forfeit his office@).  And although his supplemental motion purports to submit section 16-204 of
the City=s Subdivision Ordinance, the section actually submitted and certified is 16-240.  We deny his
supplemental motion in its entirety.

[10]Brock also stated in his affidavit attached to his motion for summary judgment that at the time he
published the Ad, he Abelieved its contents.@

[11]Brock reapplied for a zoning change for the RaceTrac gas station after Tandy lost the mayoral election
and one of the council members had been replaced.

[12]Brock testified that Otis Welch, the chairman of the planning and zoning commission who also signed the
plat in 2004, did not commit a felony Abecause, actually, he probably didn=t know@ that his signature was
going to be backdated.

[13]Brock claimed that the City destroyed his Phase III plat, having Aheard from one of the City employees
that some lady went down there where the plats and everything was kept with a garbage can and threw
every plat in it in the garbage,@ but he did not remember who the City employee was or who the Alady@
was who allegedly threw the plats away.

Brock also testified that he did not recall receiving a letter from the City in September 1999, after the
approval of his final Phase III plat, requesting that he submit required information for filing with Tarrant
County, but he later testified that he hand-carried all of the requirements within the thirty-day time limit set
out in the letter.  He also did not recall receiving a second notice requesting the same information in
February 2000.

[14]The December 22, 2006 letter from the City Attorney to Brock=s attorney stated, in pertinent part:

As you are aware, the [City] has initiated proceedings to acquire a drainage easement across [Brock=s]
property.  In a good faith attempt to discuss and possibly resolve the issues relating to this acquisition, I
have been instructed to convey to you that the Mayor and two City Council members would be willing to
meet personally with your client at Town Hall at a mutually convenient time.  As a prerequisite to the
meeting, your client, as a show of good faith, must remove the existing Adam@ and other fill or materials so
as to allow full flow of water across the current drainage ditch.

[15]In his affidavit, Brock stated, AI was unwilling to have the meeting under these conditions.@

[16]Brock testified, A[W]hen I was mayor, if anything was wrong, I wouldn=t let it happen.@  He stated in his
affidavit that he held Amulti terms as the [City=s] mayor.@

[17]Carson was on the Keller City Council during the last year of Tandy=s second term.

[18]In the memo, the city manager states that the planning and zoning commission secretary (a city staff
member) dated all of the City official signatures with the actual date of approval of the plat because he
thought that both the signature date of the plat and the resolution date approving the plat in 1999 should be
the same.  He also states that the backdating did not void the plat because all signatures and other
essential documentation were in order when filed in 2004, although the city staff member should not have
backdated the signatures.  Carson testified that the city manager=s explanation in response to the Ad was
Athe most likely truthful explanation.@  Carson testified that he did not recall giving Brock a copy of the

[19]Carson was deposed because of his role as a member of the City Council and because of his
relationship with Brock.