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LEVEL 1 - 1 OF 15 CASES
PETER SCALAMANDRE & SONS, INC., et al., Plaintiffs, Merco
Joint Venture, Plaintiff-Counter Defendant-Appellee, v. Hugh
B. KAUFMAN, et al., Defendants, Hugh B. Kaufman; TriStar
Television, Inc., Defendants-Counter Plaintiffs-Appellants.
No. 96-50253., 96-50334, 96-50336
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
113 F.3d 556; 1997 U.S. App. LEXIS 12807; 25 Media L. Rep.
1782; 27 ELR 21153
June 3, 1997, Decided
PRIOR HISTORY: [**1] Appeals from the United States District Court for the
Western District of Texas.
DISPOSITION: REVERSED and RENDERED.
113 F.3d 556, *; 1997 U.S. App. LEXIS 12807, **1;
25 Media L. Rep. 1782
COUNSEL: For MERCO JOINT VENTURE, Planitiff - Counter, Defendant - Appellees
(96-50253, 96-50334, 96-50336): Robert Eric Birne, Dallas, TX. Joseph Davies
Tydings, David L Elkind, Dickstein, Shapiro, Morin & Oshinsky, Washington, DC.
For HUGH B KAUFMAN, Defendant - Counter, Claimant - Appellant: David Michael
Gunn, Bellaire, TX.
THE NATIONAL BROADCASTING COMPANY, DOW JONES & CO INC, FOX INC, THE TEXAS
ASSOCIATION OF BROADCASTERS, Amici Curiae (96-50253, 96-50334, 96-50336): Peter
Drew Kennedy, James A Hemphill, George, Donaldson & Ford, Austin, TX. For
ACCURACY IN MEDIA, INC., Amici Curiae (96-50253, 96-50334, 96-50336): Robert E
Lapin, Carrigan, Lapin, Landa & Wilde, Houston, TX.
For TRISTAR TELEVISION INC, Defendants - Counter Claimants - Appellants
(96-50334, 96-50336): Dan Duncan Davison, Ben David Taylor, Fulbright &
Jaworski, Dallas, TX. William Joseph Boyce, Fulbright & Jaworski, Houston, TX.
JUDGES: Before DUHE, BENAVIDES and STEWART, Circuit Judges.
OPINIONBY: DUHE
113 F.3d 556, *; 1997 U.S. App. LEXIS 12807, **1;
25 Media L. Rep. 1782
OPINION: [*559] DUHE, Circuit Judge:
Appellants Hugh B. Kaufman and TriStar Television appeal a defamation
judgment awarding Appellee Merco Joint Venture nominal damages of $ 1 against
each appellant, and punitive damages of $ 500,000 against Kaufman and $ 4.5
million against TriStar. Because Merco failed to prove actual malice, we reverse
and render judgment for Appellants.
Background
In 1989, New York City entered into a consent decree to cease disposing of its
"sewer sludge" by dumping it into the ocean. Sewer sludge is what remains, in
solid form, after wastewater from city sewers is processed and treated. New York
City was in dire need of a new way to dispose of its sewer sludge, and Merco
Joint Venture was formed to provide a solution to this dilemma. In 1992, the
city contracted with Merco to dispose of up to thirty percent of the city's
sewer sludge. n1
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n1 For its six year sludge disposal contract with the city, Merco will
receive approximately $ 168 million.
113 F.3d 556, *559; 1997 U.S. App. LEXIS 12807, **1;
25 Media L. Rep. 1782
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[**2]
Merco originally planned to ship the sludge to Oklahoma, and dispose of it by
spreading it on grassland. However, Merco could not comply with Oklahoma
environmental regulations in time to accommodate its contract. Merco promptly
chose Sierra Blanca, a town in West Texas, as the new destination for the
sludge. Merco obtained state permits to spread sludge in Texas in less than a
month. Merco purchased a ranch in Sierra Blanca as a disposal site for the
sludge shipments, which began arriving in July 1992. When sludge arrived from
New York, Merco applied it to the ground at the ranch as a fertilizer would be
applied.
In the spring of 1994, a television show produced by TriStar entitled "TV
Nation" began developing a program segment focusing on New York's sludge
shipments to Texas. The show's creator, Michael Moore, intended the program to
be a reality-based television show that used humor and satire to explore public
issues and current events.
The "germ" of the idea for the sludge segment came from a memorandum written
by a TV Nation staffer. The memorandum proposed the segment follow a load of
113 F.3d 556, *559; 1997 U.S. App. LEXIS 12807, **2;
25 Media L. Rep. 1782
sludge from the sewage plant in New York, as it was hauled down to Texas on a
train, and [**3] finally to the Merco ranch at Sierra Blanca. n2 The memo
styled the proposed segment as "a piece about the socioeconomics of waste, about
who gets--literally--shat upon."
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n2 The original concept was later altered when the railroad would not allow
TV Nation to ride the sludge train.
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Development of the segment was assigned to Fran Alswang, a TV Nation
producer. Alswang studied publications on sludge, and eventually visited Sierra
Blanca on a scouting trip. On that trip, she went to the Merco ranch, spoke with
Merco's media director, Kelly Sarber, and talked with both supporters and
opponents of the operation in Sierra Blanca. Alswang finished the scouting trip
with the impression the people of Sierra Blanca were divided over whether or not
the Merco ranch was beneficial to the town.
After Alswang completed her research, the sludge segment was videotaped in
June 1994. Roy Sekoff was the on-air correspondent for the piece. TV Nation
113 F.3d 556, *559; 1997 U.S. App. LEXIS 12807, **3;
25 Media L. Rep. 1782
spent its first day of filming at a sewage plant in New York, then flew to Texas
[**4] and taped at the Merco ranch and around Sierra Blanca. Sekoff
interviewed several persons, both those associated with the ranch and those
opposed to the Merco operation.
When Alswang had prepared a preliminary "rough cut" of the segment, she
submitted it to her superiors for legal and creative review. The reviewers
suggested she find someone to respond to Kelly Sarber's positive testimonial on
the merits of sludge.
To counter Sarber, Alswang contacted Hugh Kaufman, a twenty-five year EPA
employee whose name she had come across in her research. Kaufman told Alswang he
was [*560] authorized to speak on sludge as an EPA representative, and that
his superiors at the EPA gave him permission to proceed. Alswang interviewed
Kaufman and added portions of that interview, which questioned the safety of
Merco's practices, to her segment.
Alswang submitted a second rough cut of the sludge segment, edited to include
Kaufman's comments, for legal review. As support for Kaufman's comments, she
sent the legal department several documents disputing the safety of sludge land
application. Final revisions were made, Alswang received approval for broadcast,
and the segment entitled "Sludge Train" was broadcast [**5] on August 2,
113 F.3d 556, *560; 1997 U.S. App. LEXIS 12807, **5;
25 Media L. Rep. 1782
1994.
Merco was irate at the content of the broadcast, which it contends was an
unbalanced report on sewer sludge and Merco's practices at Sierra Blanca. After
"Sludge Train" aired, Merco sued alleging that nine portions of the Sludge Train
segment were defamatory, disparaging and false. Merco sued TriStar, Hugh
Kaufman, Roy Sekoff, Billy Addington (a resident of Sierra Blanca who opposed
the Merco operation), and Tri-State Broadcasting Co. Merco dismissed all
defendants except TriStar, Kaufman and Sekoff on the eve of trial. At the close
of Merco's case, the trial judge granted Sekoff's motion for judgment as a
matter of law.
The jury awarded Merco nominal damages of $ 2, and punitive damages of $
500,000 against Kaufman and $ 4.5 million against TriStar. TriStar and Kaufman
unsuccessfully moved for judgment as a matter of law, and the trial judge
entered judgment against TriStar and Kaufman for the amount of the jury award.
Kaufman and TriStar appeal.
I.
TriStar and Kaufman appeal on two grounds. They first contend Merco failed to
prove TriStar and Kaufman acted with actual malice. They next argue that, as
113 F.3d 556, *560; 1997 U.S. App. LEXIS 12807, **5;
25 Media L. Rep. 1782
the jury awarded only $ 2 total in actual damages, the district [**6] court
erred under both Texas and constitutional law when it entered judgment for Merco
on $ 4.5 million and $ 500,000 in punitive damages.
II.
We first address whether Merco met its burden of proving TriStar and Kaufman
acted with actual malice when they allegedly defamed Merco.
State libel law's reach is curtailed by the constitutional guarantees of
freedom of speech and freedom of the press. <=1> Rosenbloom v. Metromedia,
Inc., 403 U.S. 29, 30, 91 S. Ct. 1811, 1813, 29 L. Ed. 2d 296 (1971). If a
plaintiff alleging defamation is considered a "public figure," n3 or a person or
entity whose views and actions on public issues and events are of concern to
other citizens, <=2> Curtis Publ'g Co. v. Butts, 388 U.S. 130, 162, 87 S. Ct.
1975, 1995, 18 L. Ed. 2d 1094 (1967) (Warren, C.J., concurring), that plaintiff
must prove the alleged defamation was "made with "actual malice'--that is, with
knowledge that it was false or with reckless disregard of whether it was false
or not." <=3> New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S. Ct.
710, 726, 11 L. Ed. 2d 686 (1964).
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113 F.3d 556, *560; 1997 U.S. App. LEXIS 12807, **6;
25 Media L. Rep. 1782
-
n3 For the purposes of this litigation, Merco stipulated to its public figure
status.
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[**7]
Because of the requirement in "public figure" defamation cases that a
defendant have acted with actual malice, our standard of review is different
from the deferential "clearly erroneous" standard mandated by Rule 52(a).
Rather, in such cases, we have an obligation to make an independent examination
of the entire record to ensure the judgment is supported by clear and convincing
evidence of actual malice. <=4> Bose Corp. v. Consumers Union of U.S., Inc.,
466 U.S. 485, 511, 104 S. Ct. 1949, 1965, 80 L. Ed. 2d 502 (1984). However, this
obligation extends only to the ultimate factual finding of actual malice; we do
not conduct de novo review of the jury's determination of preliminary factual
issues or questions of credibility. <=5> Brown v. Petrolite Corp., 965 F.2d
38, 46 (5th Cir.1992).
Proving actual malice is a heavy burden. Proof that a defendant broadcast
false statements will not alone show actual malice--the Supreme Court has made
113 F.3d 556, *560; 1997 U.S. App. LEXIS 12807, **7;
25 Media L. Rep. 1782
clear there is a significant difference between proof of actual malice and proof
of falsity. [*561] <=6> Bose Corp., 466 U.S. at 511, 104 S. Ct. at 1965.
Proof that a defendant spoke out of dislike, or with ill will towards another,
also does not automatically [**8] meet the test of actual malice, even if his
statements are shown to be false. <=7> Garrison v. Louisiana, 379 U.S. 64, 73,
85 S. Ct. 209, 215, 13 L. Ed. 2d 125 (1964). If a publication is undertaken in
good faith, failure to investigate the subject of that publication will not in
itself establish actual malice. <=8> St. Amant v. Thompson, 390 U.S. 727, 733,
88 S. Ct. 1323, 1326-27, 20 L. Ed. 2d 262 (1968). That a defendant publishes
statements anticipating financial gain likewise fails to prove actual malice: a
profit motive does not strip communications of constitutional protections.
<=9> Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667, 109
S. Ct. 2678, 2685-86, 105 L. Ed. 2d 562 (1989). As long as a defendant does not
act knowing his statement is false or with reckless disregard of its truth,
actual malice will not be present.
There are no set criteria to measure when a defendant's actions constitute
"reckless disregard" of the truth. The Court has noted that " "reckless
disregard' ... cannot be fully encompassed in one infallible definition."
<=10> St. Amant, 390 U.S. at 730, 88 S. Ct. at 1325. "A "reckless disregard'
for the truth, however, requires more than a departure [**9] from reasonably
prudent conduct." <=11> Harte-Hanks, 491 U.S. at 688, 109 S. Ct. at 2696.
113 F.3d 556, *561; 1997 U.S. App. LEXIS 12807, **9;
25 Media L. Rep. 1782
The standard for reckless disregard "is a subjective one--there must be
sufficient evidence to permit the conclusion that the defendant actually had a
"high degree of awareness of ... probable falsity'." <=12> Harte-Hanks, 491
U.S. at 688, 109 S. Ct. at 2696 (quoting <=13> Garrison, 379 U.S. at 74, 85 S.
Ct. at 215-16). The purpose of such a flexible standard is to ensure defendants
have some degree of culpability before they are found liable for defamation.
<=14> Herbert v. Lando, 441 U.S. 153, 171-72, 99 S. Ct. 1635, 1646-47, 60 L.
Ed. 2d 115 (1979).
In short, "the actual malice standard is not satisfied merely through a
showing of ill will or "malice' in the ordinary sense of the term." <=15>
Harte-Hanks, 491 U.S. at 666, 109 S. Ct. at 2685. Culpability on the part of the
defendant is essential. "There must be sufficient evidence to permit the
conclusion that the defendant in fact entertained serious doubts as to the truth
of his publication." <=16> St. Amant, 390 U.S. at 731, 88 S. Ct. at 1325. That
evidence is lacking here.
III.
Merco has continually asserted sludge application at its Sierra Blanca
[**10] ranch increases vegetation on arid grassland, adds nutrients to the
soil, and conditions the soil to make better use of a limited water supply.
113 F.3d 556, *561; 1997 U.S. App. LEXIS 12807, **10;
25 Media L. Rep. 1782
Merco claims that "Sludge Train" was an unwarranted attack on the land
application of sludge and the Sierra Blanca operation.
Merco argues that TriStar intended from the start to present a negative,
one-sided view of the sludge project. It cites the original concept memorandum
discussing "the socioeconomics of waste" as evidence of TriStar's prejudice. It
claims Fran Alswang and TriStar deceitfully obtained the cooperation of Merco
and Merco supporters by indicating the piece would be complimentary.
Merco also contends TriStar erred in interviewing Kaufman, as he is a
"renegade" notorious for his "whistleblower" activities and has no authority at
the EPA. Merco argues Alswang had read a Wall Street Journal article that should
have informed her Kaufman was not an authorized EPA spokesperson. Merco claims
it provided Alswang with the names of "experts" who were better informed than
Kaufman, but that Alswang sought Kaufman out solely because of his anti-sludge
bias.
Appellants TriStar and Kaufman argue that, contrary to Merco's claims, sludge
[**11] has not been proven safe for land application and they fairly aired all
points of view. Officials, scientists, and average citizens have debated the
wisdom of spreading sludge on farmland. n4 Appellants also claim that, beyond
the general dispute over the safety of sludge, Merco's operation in Sierra
113 F.3d 556, *561; 1997 U.S. App. LEXIS 12807, **11;
25 Media L. Rep. 1782
Blanca has itself been a topic of dissension. When it came to light how quickly
Merco received state regulatory approval for its project, Merco was subjected to
media scrutiny and criticism. Appellants [*562] note the Texas Water
Commission later admitted its decision to grant Merco regulatory approval was
made too quickly: subsequent to Merco's registration, the Commission imposed
additional restrictions on the Sierra Blanca operation, and promulgated new
rules related to the registration of beneficial use sites. TriStar stands by its
decision to interview Kaufman, and argues other sources support Kaufman's views.
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n4 In fact, Merco stipulated for the purposes of this lawsuit that the Merco
project is considered by some to be controversial.
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[**12]
Merco's allegations of defamation are based on statements and alleged
implications in the TV Nation segment, including statements that Merco was "an
illegal haul and dump operation," that "the people of Texas are being poisoned,"
that sludge contained "high levels of lead, mercury and PCBs," and an
implication that Merco committed arson. Merco also claims other aspects of the
113 F.3d 556, *562; 1997 U.S. App. LEXIS 12807, **12;
25 Media L. Rep. 1782
segment amounted to defamation, such as the statement, "New York sludge cake
isn't just made of toilet refuse. In fact, anything that goes down the drain or
sewer ends up [in treatment plants]," interviews with persons who were not
residents of Sierra Blanca about the sludge odor, edited interview tapes with
Judge Billy Love and Julie Porter that allegedly misrepresented their
statements, and a metaphor about "the smell of money" Merco claims implied it
bribed Judge Love.
Merco claims TriStar and Kaufman knew such statements were false, and
therefore acted with actual malice when they made and broadcast those
statements. We disagree. Merco has not met its burden of proving actual malice
as to either TriStar or Kaufman. Merco presented no proof that TriStar and
Kaufman knew, or should have known, that any part [**13] of the "Sludge
Train" broadcast was false. Indeed, Merco failed to show any part of the
broadcast actually was false.
Merco's objections to the "Sludge Train" broadcast result from its tendency
to stretch every "implication" it finds in the broadcast to its farthest limit,
then draw dubious conclusions from these unrealistic interpretations. It assumes
viewers will automatically reach these same illogical conclusions, and bases its
defamation claims on these assumptions.
113 F.3d 556, *562; 1997 U.S. App. LEXIS 12807, **13;
25 Media L. Rep. 1782
The conclusion the evidence at trial suggests is that experts have yet to
reach a consensus on the safety of land application of sludge. Merco itself
conceded land application of sludge was controversial. At best, Merco's evidence
proved certain experts believe sludge is safe. It did not, however, prove
TriStar and Kaufman knew or should have known their position, evidenced by the
TV Nation broadcast, was false, or that it was in fact false.
Kaufman's statements that Merco was "an illegal haul and dump operation," and
that "the people of Texas are being poisoned," were shown at trial to be
Kaufman's honest beliefs, and were not so without basis as to constitute
reckless disregard of the truth. Kaufman testified [**14] to several aspects
of the Merco operation he found questionable, and noted instances when Merco had
failed to comply with various regulations.
Kaufman professed his sincere belief that the land application of sludge is
dangerous, and will eventually be proved harmful. His figurative reference to
"poison" is hyperbolic, but exaggeration does not equal defamation. Merco
repeatedly claims experts and agencies have stated sludge is safe, and argues
those opinions prove Kaufman should have known his statements were false.
However, these expert opinions are merely that--opinions. Moreover, because an
"expert" endorses a certain practice does not mean all reasonable debate on the
merits or safety of that practice is foreclosed.
113 F.3d 556, *562; 1997 U.S. App. LEXIS 12807, **14;
25 Media L. Rep. 1782
Sekoff's voice-over comment that sludge contained "high levels of lead,
mercury and PCBs" likewise failed to meet the standard of actual malice. The
vagueness of the term "high levels" makes Merco's burden of proving defamation
even more difficult. As well, the statement made no particular reference to
Merco sludge, referring instead to sludge in general. Kaufman, who originally
made the statement, based this assertion on numerous articles and reports
questioning [**15] the safety of sludge and its contents. There was adequate
support for the statement.
Merco's conclusion TriStar implied it committed arson stems from a portion of
the segment showing a visit by Sekoff and Billy Addington to the remains of
Addington's lumberyard. The lumberyard had burned; a police report attributed
the cause of the fire to arson. In the segment, Sekoff stated in a voice-over
that Addington was a sludge opponent, [*563] and that Addington believed his
opposition "has made him some powerful enemies." Addington stated: "And many of
the people of ... in town know why the arson happened, it was because of our
speaking out against the sludge."
In the segment, Addington merely stated his beliefs--that his lumberyard was
burned because he opposed bringing sludge to Sierra Blanca. Given that a police
report found the fire was arson, Addington's belief that his involvement in a
contentious dispute in his hometown provided the motive for this crime is not
113 F.3d 556, *563; 1997 U.S. App. LEXIS 12807, **15;
25 Media L. Rep. 1782
reckless and has not been proven false. Merco's name was not mentioned as a
suspect. n5 While viewers could conclude Merco was somehow implicated in the
arson, they were equally likely to believe some other supporter of sludge in
[**16] Sierra Blanca was responsible for the fire.
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n5 In fact, TriStar edited out a reference to the company by Addington, who
had actually stated his opposition to "the sludge and Merco" prompted the arson.
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The statements, "New York sludge cake isn't just made of toilet refuse. In
fact, anything that goes down the drain or sewer ends up [in treatment plants],"
did not defame Merco. Merco argues plastics and other sewer refuse, shown in the
tape accompanying the statements, are screened out early in the wastewater
process. The footage shown in the segment in no way impugned the character of
Merco's sludge by implying that plastics and debris end up in the final sludge
product.
Likewise, Merco's claim it was libeled because Sekoff stated the dump was
"pungently real" to the residents of Sierra Blanca, then briefly interviewed
113 F.3d 556, *563; 1997 U.S. App. LEXIS 12807, **16;
25 Media L. Rep. 1782
two persons who did not live in the town, is groundless. TriStar did not claim
the women lived in Sierra Blanca. The women's statements supported the
"pungently real" portion of Sekoff's [**17] voice-over by describing an odor
present in Sierra Blanca. Their place of residence has no effect on their sense
of smell.
Merco's claim TriStar committed libel by editing interview tapes with Judge
Billy Love and Julie Porter, allegedly misrepresenting their statements, also
fails. Everyone interviewed for the segment signed a personal release form
allowing TV Nation to depict or portray them as the program in its discretion
determined. The release also gave TV Nation the right to edit any statements or
comments made on camera, and informed anyone who was interviewed their
statements could be altered. It is common knowledge television programs such as
TV Nation shoot more footage than necessary and edit the tape they collect down
to a brief piece. TV Nation was entitled to edit the tape it shot to fit into
the short time frame allotted to the sludge segment.
Finally, Merco's assertion that TriStar implied it bribed Judge Love by using
a metaphor about "the smell of money" is without merit. Throughout the segment,
Sekoff referred to the "smell of money" in connection with the Merco operation,
playing on the strong odor reportedly associated with the sludge ranch. When he
spoke with [**18] Judge Love, Sekoff introduced the interview by stating,
113 F.3d 556, *563; 1997 U.S. App. LEXIS 12807, **18;
25 Media L. Rep. 1782
"Merco, however, does have its supporters in town. I followed the smell of money
to the county courthouse where I met Judge Billy Love, whose land company
profited from Merco's arrival."
At most, TriStar can be accused of implying Judge Love was a Merco supporter
because he profited from the company's operation in Sierra Blanca. Such an
implication is not libel. Judge Love, like many other citizens of Sierra Blanca,
actually did benefit from Merco locating in town. These benefits to Sierra
Blanca were the focus of the entire sludge segment: Sierra Blanca allowed the
establishment of a waste disposal operation, despite the fears and concerns of
certain residents, because the financial benefits outweighed other
considerations. The profit Merco brings to Sierra Blanca is the "smell of money"
Sekoff refers to in his voice-over.
In sum, while it is true the "Sludge Train" segment hardly endorsed the land
application of sludge, it does not follow that TriStar libeled Merco because it
chose to present an unenthusiastic account of Merco and the sludge ranch. The
segment was not so onesided, or without basis in fact, as to constitute
[**19] defamation. Merco is a public figure engaged in a controversial
business, and should not be shocked that some disagree with its practices.
113 F.3d 556, *563; 1997 U.S. App. LEXIS 12807, **19;
25 Media L. Rep. 1782
[*564] Merco's description of an "objective" segment appears suspiciously
like a segment that supported Merco's position on the sludge debate. However,
TriStar and Kaufman are not liable for defamation because they refused to
corroborate the Merco party line. Defamation law should not be used as a threat
to force individuals to muzzle their truthful, reasonable opinions and beliefs.
To endorse Merco's version of defamation law would be to disregard the
constitutional protections that allow individuals to hold and express unpopular
or unconventional opinions.
Because Merco failed to meet its difficult burden of proving actual malice by
clear and convincing evidence, we find the district court erred in entering
judgment for Merco on its defamation claims against TriStar and Kaufman.
IV.
As we find Merco did not present clear and convincing proof of actual malice
on the part of TriStar or Hugh Kaufman, and reverse and render on that ground,
we find it unnecessary to discuss Appellants' other point on appeal. However, we
note that our resolution of this [**20] case on the ground of insufficient
evidence in no way signals a retreat from the reasoning embraced in <=17>
Brown v. Petrolite Corp., 965 F.2d 38 (5th Cir.1992), where this Court reversed
an award of $ 300,000 in punitive damages when the plaintiff was awarded only
113 F.3d 556, *564; 1997 U.S. App. LEXIS 12807, **20;
25 Media L. Rep. 1782
$ 1 in compensatory damages. Under the Texas law in effect at the time of trial,
n6 this Court has found when a plaintiff "suffered only nominal damages, the
jury was not entitled to award exemplary damages." <=18> Id. at 49; see
<=19> Snead v. Redland Aggregates Ltd., 998 F.2d 1325, 1334-35 (5th Cir.1993).
Texas law clearly establishes that "recovery of actual damages is prerequisite
to receipt of exemplary damages." <=20> Doubleday & Co., Inc. v. Rogers, 674
S.W.2d 751, 754 (Tex.1984); see <=21> Twin City Fire Ins. Co. v. Davis, 904
S.W.2d 663, 665 (Tex.1995); <=22> Newman v. Tropical Visions, Inc., 891 S.W.2d
713, 721 (Tex.App.--San Antonio 1994); <=23> St. Paul Lloyd's Ins. Co. v. Fong
Chun Huang, 808 S.W.2d 524, 528 (Tex.App.--Houston (14th Dist.) 1991). Such a
disproportionate award of punitive damages may also be unconstitutional.
<=24> BMW of North America, Inc. v. Gore, U.S. , 116 S. Ct. 1589, 134
L. Ed. 2d 809 (1996).
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n6 Amendments allowing punitive damages, even if only nominal damages are
awarded, upon a showing of malice have since gone into effect. TEX.CIV.PRAC. &
REM.CODE ANN. @ 41.004(b) (Vernon Supp.1996). However, those amendments apply
only to causes of action accruing on or after September 1, 1995. TEX.CIV.PRAC. &
REM.CODE ANN. @ 41.001 historical & statutory notes (Vernon Supp.1996).
113 F.3d 556, *564; 1997 U.S. App. LEXIS 12807, **20;
25 Media L. Rep. 1782
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[**21]
V.
As we find Merco failed to meet its burden of proving actual malice by clear
and convincing evidence, we REVERSE the judgment of the district court and
RENDER judgment for Appellants TriStar and Kaufman, that Merco take nothing.
REVERSED and RENDERED.