NUMBER 13-09-00655-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

SCRIPPS TEXAS NEWSPAPERS, LP D/B/A CORPUS

CHRISTI CALLER-TIMES AND THE E.W. SCRIPPS

COMPANY, ET AL., Appellants,

v.

TERRY CARTER, Appellee.

On appeal from the 214th District Court

of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Benavides

Memorandum Opinion by Chief Justice Valdez

Appellants, Scripps Texas Newspapers, L.P. d/b/a Corpus Christi Caller-Times 

and the E.W. Scripps Company (collectively “Scripps”), Judy Hawley, Sylvia Whitmore, 

Carol Scott (collectively the “Executive Committee Members”), and Damon Bentley,

1

 

1 Damon Bentley did not timely file a brief in this case. Accordingly, we dismiss his appeal for 
2

appeal from the trial court’s denial of their motions for summary judgment in favor of 

appellee, Terry Carter.2 We affirm in part and reverse and render in part.

I. BACKGROUND

Terry Carter served as president and CEO of the Chamber of Commerce in 

Corpus Christi, Texas. In 2007, investors planned to develop a multi-million dollar mall 

called Crosstown Commons and requested $40 million in tax incentives from the city, 

which according to Carter, included tax rebates and reimbursements for road and utility 

improvements. The city council was asked to vote on the $40 million tax incentive. At a 

city council meeting on June 12, 2007, Carter suggested that the city council take its 

decision to grant the tax incentives “slow.”

Scripps then ran a series of stories regarding the tax proposal. According to 

Carter, Scripps then began publishing a series of twenty-five articles “falsely accusing 

[him] of mismanagement, financial improprieties, and of stealing a tape recording of a 

[Chamber of Commerce] board meeting.”3

Carter sued the Executive Committee Members for defamation, tortious 

interference with prospective business relations, conspiracy, breach of fiduciary duty, 

 

want of prosecution.

2 Generally, an order denying a motion for summary judgment is not appealable. See Cincinnati 

Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996) (citing Novak v. Stevens, 596 S.W.2d 848, 849 

(Tex. 1980)). However, an exception to this rule applies in cases involving a media defendant in a 

defamation case. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(6) (West Supp. 2011) (allowing an 

appeal of a trial court’s interlocutory order denying “a motion for summary judgment that is based in whole 

or in part upon a claim against or defense by a member of the electronic or print media, acting in such 

capacity, or 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”).

3 Carter claims that the Executive Committee Members published defamatory statements 

concerning his handling of the Chamber’s affairs in these articles. He further asserts that they accused 

him in the articles of mismanagement of Chamber funds in order to acquire a bonus that was tied to the 

Chamber’s finances.
3

and tortious interference with an existing contract. Carter sued Scripps for defamation, 

conspiracy, and inducement to breach fiduciary duty. Appellants moved for no evidence 

and traditional summary judgment. The trial court denied the motions. This appeal 

followed.

II. PUBLIC FIGURE

By their first issue, appellants contend that Carter is a public figure, which 

requires him to prove at trial that Scripps published its news stories with actual malice. 

Specifically, Scripps argues that Carter’s role as the CEO of the Chamber of Commerce 

made him a public figure because there was a public controversy regarding the 

Crosstown Commons, Carter’s role in the controversy was neither tangential nor trivial, 

and the alleged defamation was germane to Carter’s participation in the controversy.

A. Applicable Law

Public figures fall into two categories: (1) all-purpose, or generalpurpose, public figures, and (2) limited-purpose public figures. Generalpurpose public figures are those individuals who have achieved such 

pervasive fame or notoriety that they become public figures for all 

purposes and in all contexts. Limited-purpose public figures, on the other 

hand, are only public figures for a limited range of issues surrounding a

particular public controversy.

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

omitted) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974)).

A public figure suing a media defendant for defamation must prove that the 

defendant published the statement with actual malice. Klentzman v. Brady, 312 S.W.3d 

886, 905–06 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (citing Gertz, 418 U.S. at

342). A private figure suing a media defendant, however, must only show that the 

media defendant acted negligently. Entravision Commc’ns. Corp. v. Belalcazar, 99 
4

S.W.3d 393, 399–400 (Tex. App.—Corpus Christi 2003, pet. denied). Whether a 

person is a public figure is a question of law for the court to decide. Klentzman, 312 

S.W.3d at 904.

In Gertz, the United States Supreme Court noted that it would not assume that a 

person who “had long been active in community and professional affairs,” “served as an 

officer of local civic groups and of various professional organizations,” had “published 

several books and articles on legal subjects,” and “was consequently well known in 

some circles” was a general-purpose public figure. 418 U.S. at 351–52. The court 

stated:

We would not lightly assume that a citizen’s participation in 

community and professional affairs rendered him a public figure for all 

purposes. Absent clear evidence of general fame or notoriety in the 

community, and pervasive involvement in the affairs of society, an 

individual should not be deemed a public personality for all aspects of his 

life. It is preferable to reduce the public-figure question to a more 

meaningful context by looking to the nature and extent of an individual’s 

participation in the particular controversy giving rise to the defamation.

Id. at 352.

Thus, if a person is not a general-purpose public figure, we apply a three-part 

test in deciding whether that person is instead a limited-purpose public figure: (1) was 

the controversy at issue public both in the sense that people were discussing it and 

people other than the immediate participants in the controversy were likely to feel the 

impact of its resolution; (2) did the plaintiff have more than a trivial or tangential role in 

the controversy; and (3) was the alleged defamation germane to the plaintiff’s 

participation in the controversy (the “three-part test”). McLemore, 978 S.W.2d at 571 

(labeling the three-part test the “Trotter/Waldbaum test”) (citing, among other cases, 
5

Waldbaum v. Fairchild Publ’g, Inc., 627 F.2d 1287, 1296–98 (D.C. Cir. 1980)); 

Klentzman, 312 S.W.3d at 904–05.

To determine whether a controversy indeed existed and, if so, to 

define its contours, the judge must examine whether persons actually 

were discussing some specific question. A general concern or interest will 

not suffice. The court can see if the press was covering the debate, 

reporting what people were saying and uncovering facts and theories to 

help the public formulate some judgment.

McLemore, 978 S.W.2d at 572. Furthermore, a public controversy is more than simply 

a matter of interest to the public; it must be a dispute that has received public attention 

because the outcome affects the general public or some segment of it in an appreciable 

way. Einhorn v. LaChance, 823 S.W.2d 405, 412 (Tex. App.—Houston [1st Dist.] 1992, 

writ dism'd w.o.j.); see Time, Inc. v. Firestone, 424 U.S. 448, 454 (1976) (finding that the 

general controversy surrounding divorce is not a public controversy for purposes of 

analyzing whether a party is a limited-purpose public figure).

It is not enough that a plaintiff is involved or associated with a matter of 

public or general interest, no matter how significant or sensational. “A 

private individual is not automatically transformed into a public figure just 

by becoming involved in or associated with a matter that attracts public 

attention” or is newsworthy.

Klentzman, 312 S.W.3d at 904 (internal citations omitted).

4

B. Discussion

Appellants first argue that Carter is a limited-purpose public figure because a 

public controversy existed, he had more than a trivial or tangential role in the public 

controversy, and the alleged defamation was germane to his participation in that 

controversy. Scripps further asserts that although Carter qualifies as a limited-purpose 

 

4

“Even engaging in criminal conduct does not make [] a person a limited-purpose public figure.” 

Klentzman v. Brady, 312 S.W.3d 886, 905 (Tex. App.—Houston [1st Dist.] 2009, no pet.).
6

public figure, “he is also a public figure by virtue of the high-profile position he held with 

a prominent civic organization.” Citing Waldbaum v. Fairchild Publishing, Inc., 627 F.2d 

1287 (D.C. Cir. 1980), Scripps claims that “[s]ometimes position alone can make a 

public figure.” See Waldbaum, 627 F.2d at 1298–1300 (finding that the plaintiff was a 

limited-purpose public figure and setting out that the three-part test applies).

5

Scripps appears to argue that this Court does not need to engage in the threepart test in order to determine whether Carter is a limited-purpose public figure because 

Carter’s status as CEO of the Chamber of Commerce alone made him a limitedpurpose public figure. However, the cases cited by Scripps do not support such a 

conclusion.6

 

5 We note that Scripps does not cite to any cases or authority finding that a person is a generalpurpose public figure based solely on his chosen career path. As stated above, in Waldbaum, the court 

did not conclude that the plaintiff was a general-purpose public figure and applied the three-part test to 

conclude that he was a limited-purpose public figure. Moreover, in its analysis Scripps does not 

specifically argue that Carter is a general-purpose public figure. Scripps merely makes the general 

statements as set out above. The Executive Committee Members in their summary of the argument in 

one sentence state, “Carter is either a general-purpose or limited-purpose public figure.” However, they 

have not offered any citation to the record or argument with authority regarding whether Carter is a 

general-purpose public figure in their brief. See TEX. R. APP. P. 38.1(I). Accordingly, we will not address 

whether Carter is a general-purpose public figure.

6

See Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1298–1300 (D.C. Cir. 1980) 

(finding that the plaintiff was a limited-purpose public figure and setting out that the three-part test 

applies); Trotter v. Jack Anderson Enters., Inc., 818 F.2d 431, 433–34 (5th Cir. 1987) (applying three-part 

test and determining that the plaintiff was a limited-purpose public figure); Milsap v. Journal/Sentinel Inc., 

100 F.3d 1265, 1270 (7th Cir. 1996) (per curiam) (determining that the plaintiff who was appointed as the 

first director of an anti-poverty program was a limited-purpose public figure with respect to financial 

dealings of the program because he injected himself into the public controversy surrounding that issue); 

A.H. Belo Corp v. Rayzor, 644 S.W.2d 71, 84 (Tex. App.—Fort Worth 1982, writ. ref’d n.r.e.) (determining 

that the plaintiff was a limited-purpose public figure because he “thrust himself into the vortex of the public 

issue . . . and engaged the public’s attention in an attempt to influence its outcome”); Wright v. Haas, 586 

P.2d 1093, 1096 (Okla. 1978) (explaining that the plaintiff was a public figure because he “injected 

himself into the vortex of the public controversy” by sending letters to the editor intending for the media 

defendant to print the letters and “sought to engage the public’s attention to influence public issues”); 

Nelson v. WEB Water Dev. Ass’n, Inc., 507 N.W.2d 691, 697 (S.D. 1993) (deciding only that the plaintiff 

was a limited-purpose public figure; no claim was made that the plaintiff was a general-purpose public 

figure); Little v. Breland, 93 F.3d 755, 758 (11th Cir. 1996) (“The district court did not err in determining 

that Little was a limited-purpose public figure for purposes of his leadership of the Mobile Convention and 

Visitors Corporation as well as the controversy surrounding his sudden departure as president of the 

organization” because he was “intimately involved in the public controversy” regarding those issues); see 

also Lacombe v. San Antonio Express News, No. 04-99-00426-CV, 2000 Tex. App. LEXIS 556, at *7–8 
7

Accordingly, we decline to conclude that Carter’s position as CEO of the 

Chamber of Commerce alone made him a limited-purpose public figure. Based on the 

above cases and on Texas authority, we conclude that we must determine whether 

Carter is a limited-purpose public figure by applying the three-part test stated above. 

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

Scripps alleges that Carter is a limited-purpose public figure because there was a 

controversy “surrounding” the Crosstown Commons. Scripps claims that “Corpus 

Christi public officials, Carter, Chamber members, community activists, ordinary citizens 

and the news media were all actively discussing the pros and cons of the proposed TIF 

development.” Scripps states, “Clearly, before the articles at issue were published, a 

substantial segment of the public and public officials were discussing different, strongly 

held opinions on the issue.”7

 

(Tex. App.—San Antonio Jan. 26, 2000, pet. denied) (mem. op.) (finding that the plaintiff was a limitedpurpose public figure after applying three-part test articulated in Trotter and Waldbaum).

Appellants also cite Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 n.4 (4th Cir. 1993) to 

support their allegation that Carter is a general-purpose public figure. However that case is also 

distinguishable because the court determined, without analysis, that the plaintiffs (a Charitable 

Organization and its president) were general-purpose public figures because the “plaintiffs’ status as 

‘public figures’ [was] irretractably admitted on the face of the complaint.”

Finally, appellants cite Miller v. Transamerican Press, 621 F.2d 721 (5th Cir. 1980). In that case, 

the court found that the plaintiff was a public figure because he was a high-ranking official of a union with 

“tremendous importance to our economy.” See id. at 724. The court limited the plaintiff’s public purpose 

figure status as to issues involving the plaintiff’s official duties with the union. See id. This comports with 

a finding that the plaintiff was a limited-purpose public figure, although the court did not make such a 

distinction. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974) (explaining that a general-purpose 

public figure is a public figure “for all purposes and in all contexts” while a limited-purpose public figure 

“becomes a public figure for a limited range of issues”).

7

The Executive Committee Members, without citation to the record, merely state that, “Based on 

the uncontroverted summary judgment evidence, Carter is a public figure as a matter of law. As the 

president and CEO of the Chamber, the business advocacy group operating in the City of Corpus Christi, 

Carter clearly was a public figure. All of the statements made by [the Executive Committee Members] 

were germane to Carter’s involvement with the Chamber.” The Executive Committee Members offer no 

other argument regarding Carter’s status as a limited-purpose public figure.
8

In its brief, Scripps points to portions of Carter’s deposition wherein Carter stated 

that “the controversy started when the mayor gave four days to a brand new city council 

to absorb a $40 million tax increment financing agreement. All I said—and it’s on the 

record, and I’m sure you’ve got a copy of it—was: Ladies and gentlemen, please slow 

this process down.” Scripps’s attorney then asked, “You said you stepped into the 

middle of the controversy [on June 12, 2007] and you said, ‘Slow down.’” Carter 

responded “That’s correct.”8 Accordingly, based on Carter’s assertion that he “stepped 

into the middle of the controversy,” we conclude that this is sufficient evidence to show 

that a controversy existed before Scripps published the alleged defamatory statements 

about Carter.9 However, we disagree with appellants that the controversy was as broad 

as Scripps claims, that is, that the public controversy was “over the Crosstown 

Commons.” We instead conclude that the existing controversy concerned whether the 

mayor had given the newly formed city council enough time “to absorb a $40 million tax 

increment financing agreement” (“TIF”) because this is the only controversy that existed 

when Carter made his statements before the articles concerning his job performance 

were published.

Next, we must determine whether Carter’s role in the existing controversy was 

more than trivial or tangential. See McLemore, 978 S.W.2d at 571. There is evidence 

 

8 We have reviewed Scripps’s motion for summary judgment. In its motion, Scripps cited to its 

exhibits as either “Exhibit A, B, or C, etc.” and indicated the corresponding page and line numbers. 

However, most of the exhibits in the appellate record are not marked as exhibits A, B, or C, etc. with the 

corresponding page and line numbers. There are over two thousand pages of evidence attached to 

Scripps’s motion. Accordingly, because the record is voluminous, and we have no duty to independently 

locate Scripps’s evidence, we will only review the evidence that Scripps has cited in its brief. See 

Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 283 (Tex. 1994) (explaining that it has 

never been a part of an appellate court’s duties to search the record for evidence itself).

9

It appears from the record that the articles concerning Carter’s alleged mismanagement of the 

Chamber’s funds were published after this meeting.
9

that Carter injected himself into the controversy. As shown above, Carter 

acknowledges that at the meeting, he asked the city council to “slow down” in making its 

decision regarding the TIF. Furthermore, there is evidence in the record that Carter 

published an article entitled “Will Someone Please Set the Record Straight” as president 

and CEO of the Chamber of Commerce that was sent in an email with the subject line, 

“Your Corpus Christi Chamber News.” In this article, Carter responded to the articles in 

the Caller Times regarding the TIF and to its reporting of remarks he made. Carter 

iterated that according to certain “professionals in dealing with TIFs,” it would take 

“more than 4 days” to “work through such an agreement.” Carter stated that the Caller 

Times had incorrectly reported that he is “anti-growth” and reiterated that the city council 

needed to slow down the decision-making process regarding the TIF. Carter then 

stated, “The Corpus Christi Chamber of Commerce is supportive of prudent effective 

growth. To that end, we are supportive of responsible retail development and 

redevelopment in the City. It is equally the Chamber’s position that the current TIF 

policy before the City Council needs to support existing retail developments and must 

incorporate” several changes. (Emphasis in original). Carter listed one of the 

necessary changes as the following: “The Chamber actively encourages the City 

Council to take the necessary time to thoughtfully consider all suggested modifications 

and opposition submitted by concerned citizens and thusly, we recommend holding on 

taking a vote on [the TIF matter] until such time the issues can duly be considered.” 

(Emphasis in original).

In McLemore, the court explained that

[i]n considering a libel plaintiff’s role in a public controversy, several 

inquiries are relevant and instructive: (1) whether the plaintiff actually 
10

sought publicity surrounding the controversy; (2) whether the plaintiff had 

access to the media; and (3) whether the plaintiff “voluntarily engaged in 

activities that necessarily involved the risk of increased exposure and 

injury to reputation.”

McLemore, 978 S.W.2d at 573 (internal citations omitted). The court stated that by 

publishing one’s views, one invites public criticism and rebuttal; thus, one has voluntarily 

entered into one of the submarkets of ideas and opinions. Id.

Here, Carter acknowledged that he expressed his views at the city council 

meeting regarding the TIF and then sent a newsletter from the Chamber of Commerce 

stating that it was the Chamber’s recommendation that the city council “hold[] on taking 

a vote” on the TIF. Carter published his views regarding the TIF, thereby voluntarily 

entering into the vortex of the controversy concerning the TIF. Furthermore, there is 

evidence in the record that as CEO of the Chamber of Commerce, Carter had access to 

the media. See id. Therefore, we conclude that Carter’s role in the controversy was 

more than trivial or tangential.

Finally, we must determine whether the alleged defamation was germane to 

Carter’s participation in the controversy. In his petition, Carter alleged that Scripps

defamed him by publishing written statements concerning his job performance, 

specifically, his financial stewardship of the financial affairs of the Chamber of 

Commerce.

10 Carter further alleged that Scripps defamed him by publishing written 

 

10 Specifically, Carter alleged in his petition the following:

Defendant Caller Times and the E. W. Scripps Company, members of the print 

media, published written statements asserting as fact that Plaintiff’s bonus is linked to the 

Chamber’s financial performance, before leaving the room Plaintiff seized a tape 

recording of the meeting and left the building, there were highly questionable stewardship 

of the financial affairs of the Chamber by Plaintiff, the Chamber CEO’s actions raise 

serious questions, there were financial irregularities, Plaintiff shifted money to the 

Chamber’s Foundation, Plaintiff could be heard shouting during portions of the meeting 

and intimidation, secrecy and duplicity discredit a vital organization.
11

statements that “before leaving the room [Carter] seized a tape recording of the meeting 

and left the building.” Scripps acknowledges that the “articles at issue concern Carter’s 

job performance and financial stewardship of the Chamber.” However, they argue that

by speaking at the city council meeting, Carter “assumed the risk that the press, in 

covering the controversy, [would] examine” him with a critical eye. We do not agree that 

Carter’s job performance and financial stewardship of the Chamber of Commerce is

germane to whether or not the mayor of Corpus Christi gave the city council enough 

time to decide whether “to absorb a $40 million tax increment financing agreement.” 

Accordingly, we conclude that the alleged defamation was not germane to Carter’s 

participation in the controversy concerning the amount of time the city council had to 

decide whether to grant the TIF.

11

We overrule appellants’ first issue. We have determined that Carter is not a 

public figure; therefore, we conclude that he is not required to prove at trial that 

appellants acted with malice.

III. DENIAL OF SCRIPPS’S MOTIONS FOR SUMMARY JUDGMENT

A private individual suing for defamation will prevail if he proves that the 

defendant (1) published a statement (2) that was defamatory about the plaintiff (3) while 

acting with negligence regarding the truth of the statement. McLemore, 978 S.W.2d at 

571. A private individual may recover damages from a publisher for defamation upon a 

showing that the media defendant knew or should have known that the publication was 

false. Entravision Commc’ns. Corp., 99 S.W.3d at 399–400.

 

11 Even if we agreed that the existing controversy concerned the Crosstown Commons, the 

alleged defamation concerning Carter’s job performance had nothing to do with the Crosstown Commons.
12

At trial and on appeal, Scripps only complained in its no-evidence and traditional 

motions for summary judgment that there was no evidence of malice and that Carter did 

not raise an issue of material fact regarding malice. In its summary judgment motions, 

Scripps has not alleged that there is no evidence of or that Carter has not raised an 

issue of material fact regarding negligence. Scripps merely contends he is a public 

figure and has not shown malice. However, we have concluded that he is not a public 

figure and is not required to prove malice. Therefore, because Carter is not a public 

figure, the trial court could have properly denied the motions for summary judgment on 

the basis that there are questions of material fact regarding whether Scripps published 

the alleged defamatory statements about Carter while acting with negligence regarding 

the truth of the statements, a finding Scripps has not challenged at trial or on appeal. 

We overrule Scripps’s issues challenging the trial court’s denial of its motions for 

summary judgment.

Scripps further argues that because Carter failed on his cause of action for 

defamation, his claims for conspiracy to defame and inducement to breach fiduciary 

duty are barred as well. However, we have overruled Scripps’s issues regarding 

defamation. Therefore, Carter has not failed on his defamation claim. Accordingly, we 

also overrule Scripps’s issues challenging the trial court’s denial of its motions for 

summary judgment on Carter’s other causes of action.

IV. THE EXECUTIVE COMMITTEE MEMBERS’ MOTION FOR PARTIAL SUMMARY 

JUDGMENT

By their second issue, the Executive Committee Members contend that the trial 

court erred in denying their motion for partial summary judgment because no material 

fact issue exists concerning whether they published a defamatory statement. The 
13

Executive Committee Members complain that Carter did not present any competent 

summary judgment evidence raising a genuine issue of material fact that they made 

fourteen of the statements Carter claims they made and that they provided 

uncontroverted evidence that all of the statements they allegedly made were true.

A. Standard of Review and Applicable Law

In a no-evidence motion for summary judgment, we consider the evidence in the 

light most favorable to the non-movant, crediting such evidence if reasonable jurors 

could and disregarding all contrary evidence and inferences unless reasonable jurors 

could not. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (citing WalMart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002); Johnson v. Brewer & 

Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002)); see also City of Keller v. Wilson, 168 

S.W.3d 802, 825, 827 (Tex. 2005). A no-evidence point will be sustained when (a) 

there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of 

law or of evidence from giving weight to the only evidence offered to prove a vital fact, 

(c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the 

evidence conclusively establishes the opposite of the vital fact. King Ranch, Inc., 118 

S.W.3d at 751. A no-evidence summary judgment is properly granted if the respondent 

does not bring forth more than a scintilla of probative evidence to raise a genuine issue 

of material fact. Id.

Less than a scintilla of evidence exists when the evidence is “so weak as 

to do no more than create a mere surmise or suspicion” of a fact. More 

than a scintilla of evidence exists when the evidence “rises to a level that 

would enable reasonable and fair-minded people to differ in their 

conclusions.”

Id. (internal citations omitted)
14

As noted, a plaintiff suing for defamation will prevail if it proves that the defendant 

(1) published a statement (2) that was defamatory about the plaintiff (3) while acting 

with negligence if the plaintiff was a private individual, regarding the truth of the 

statement. Entravision Commc’ns. Corp., 99 S.W.3d at 399–400 (citing McLemore, 978 

S.W.2d at 571). Furthermore, to recover damages against a media defendant when the 

suit involves an issue of public concern, the plaintiff—whether a public figure or private 

individual—must prove by a preponderance of the evidence the falsity of the challenged 

statement.12 Klentzman, 312 S.W.3d at 898.

B. Discussion

The Executive Committee Members challenge the trial court’s denial of their noevidence motion for summary judgment on the basis that Carter did not provide more 

than a scintilla of evidence showing that they published a false statement. In their noevidence motion for summary judgment, the Executive Committee Members challenged 

all of the elements of each of Carter’s causes of action.13

Carter attached several exhibits to his amended consolidated summary judgment 

response to the Executive Committee Members’ motion for partial summary judgment. 

Those exhibits encompass over five thousand pages. Although Carter cited to exhibits

“A, B, or C, etc.” generally in his response, he failed to cite to specific page numbers. 

 

12 “[T]he constitutional requirements of the First Amendment supersede the common law 

presumption” of the falsity of the defamatory statement, wherein the defendant bears the burden of 

proving the statement’s truth. Klentzman, 312 S.W.3d at 898.

13 In their no evidence motion for summary judgment, the Executive Committee Members stated 

that Carter had no evidence “of the elements of his claims of tort[i]ous interference with prospective 

relations, tort[i]ous interference with an existing contract, defamation, conspiracy, libel per se, defamation 

per se and breach of fiduciary duty as set out below, and [Carter] has the affirmative duty to provide 

credible evidence in support of such claims.” The Executive Committee Members then set out the 

elements of each of the above mentioned causes of action. The prayer requested partial summary 

judgment regarding the above mentioned causes of action.
15

The trial court granted appellants’ objections to Carter’s response and struck Carter’s 

exhibits A-Q, BB, and CC attached to his response “that were not specifically 

referenced by page and line numbers.” The trial court also struck several of the 

paragraphs and sentences in Carter’s response.14

On appeal, Carter challenges the trial court’s granting of appellants’ objections to 

his exhibits and response. We conclude that it matters not whether the trial court 

abused its discretion by granting appellants’ objections to Carter’s exhibits and 

response because we are not obligated to review a voluminous record in order to 

determine whether Carter raised an issue of material fact. See Fredonia State Bank v. 

Gen. Am. Life Ins. Co., 881 S.W.2d 279, 283 (Tex. 1994) (explaining that it has never 

been a part of an appellate court’s duties to search the record for evidence itself); see 

also Shelton v. Sargent, 144 S.W.3d 113, 120 (Tex. App.—Fort Worth 2004, pet. 

denied) (citing Blake v. Intco Invs. of Tex., Inc., 123 S.W.3d 521, 525 (Tex. App.—San 

Antonio 2003, no pet.); Guthrie v. Suiter, 934 S.W.2d 820, 826 (Tex. App.—Houston 

[1st Dist.] 1996, no writ) (“holding that trial court did not abuse its discretion by refusing 

to consider a five hundred page deposition attached to the nonmovant’s response when 

the nonmovant did not point out to the trial court where in the deposition the issues set 

forth in the response were raised”)).

We have reviewed Carter’s response to the Executive Committee Members’ 

motion for partial summary judgment and the evidence that he cites by page and line 

number. This evidence does not raise an issue of material fact regarding whether the 

 

14 We note that we are unable to decipher exactly what evidence the trial court actually admitted 

based on the general nature of its order granting appellants’ objections.
16

Executive Committee Members made the alleged defamatory statements. Accordingly, 

we sustain the Executive Committee Members’ second issue.

V. OTHER CAUSES OF ACTION

By their third issue, the Executive Committee Members contend that they are 

entitled to summary judgment because Carter provided no evidence of the elements of 

breach of fiduciary duty, conspiracy, tortious interference with an existing contract, and 

tortious interference with prospective relations. Regarding these causes of action, 

Carter did not cite any evidence in his response to their motion for partial summary 

judgment. Therefore, he did not raise a genuine issue of material fact on those 

challenged elements. Accordingly, we sustain the Executive Committee Members’ third 

and final issue.

VI. CONCLUSION

We affirm the trial court’s denial of Scripps’s motions for summary judgment. We 

reverse the trial court’s denial of the Executive Committee Members’ motion for no 

evidence summary judgment and render judgment in their favor.15

__________________

ROGELIO VALDEZ

Chief Justice

Delivered and filed the 

21st day of November, 2012.

 

15 Carter filed an untimely notice of cross-appeal in this matter. In his response to the letter from 

this Court requesting that Carter cure the defect, Carter argued that he wished to appeal the trial court’s 

granting of summary judgment in favor of “a second set of defendants.” However, he stated that he was 

unable to make such an appeal because the summary judgment is not a final judgment and no exception 

applies for appellate purposes. He further argued that if this Court “decide[d] to overrule the trial court 

and render summary judgment for all [appellants] asserting the First Amendment exception . . . . on its 

face” the order granting summary judgment will “appear to be final” and Carter’s “right to appeal that 

adverse ruling may be forever lost.” We dismiss Carter’s cross-appeal as moot because we have not 

rendered summary judgment in favor of all of the appellants in this case and the summary judgment does 

not “appear to be final” as argued by Carter.