CAUSE NO. 2004-29996 1H, WALKER ROYALL. § INTHE DISTRICT COURT OF § v § BRAZORIA COUNTY, TEXAS § WRIGHT W. GORE and § DENNIS HENDERSON § 239 JUDICIAL DISTRICT DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Wright Gore, Jr. Western Seafood Company, and Wright Gore, III, Defendants in the above-entitled and numbered cause, and file this their Motion for Summary Judgment and would respectfully show unto this Honorable Court as follows: ik Judicial Proceeding Privilege Defendants file this Motion for Summary Judgment on the doctrine of absolute privilege of judicial immunity for all claims pled by Plaintiff in his Third Amended Original Petition. Communications which are made in the course of a judicial proceeding cannot serve as the basis of a civil action for libel or slander, regardless of the negligence or malice with which they are made James v. Brown, 637 S.W.2d914, 916 (Tex. 1982). The judicial proceeding privilege extends to any statements made by the Judge, jurors, counsel, parties, or witnesses and attaches to all aspects of the proceedings which include statements made in open court, pre-trial hearings, depositions, affidavits, and any of the pleadings or other papers in the case. Id. at 916-917. The judicial proceeding privilege also extends to statements made in contemplation of and preliminary to judicial proceedings. See Watson v. Kaminski, 51 S.W.3d 825, 827 (Tex. App. - - Houston [1* Dis.] 2001, no pet.); Daystar Residential, Inc. v. Collmer, 176 S.W.3d 24, 27-28 (Tex. App. - - Houston (1"Dist.] 2004). Whether an alleged defamatory communication is related to a proposed or existing judicial proceeding is a question of law for the Court. Thomas v. Bracey, 940 S.W.2d 340, 343 (Tex. App. - - San Antonio, 1997, no writ) I. Summary Judgment Evidence As authorized by Rule 166a(4) of the Texas Rules of Civil Procedure, Defendants intend to use the following discovery as summary judgment evidence, including but not limited to the following: 1 Interrogatory Answers of the City of Freeport (See Exhibit 1 to Defendants’ Response to Plaintiff's Motion for Partial Summary Judgment on his Status as a Private Figure which is fully incorporated herein for all purposes); Letter of Intent dated June 26, 2002 (See Exhibit 2 of Defendants’ Response to Plaintiff's Motion for Partial Summary Judgment on his Status as a Private Figure which is fully incorporated herein for all purposes); Maritime Trust Study dated October, 2002 (See Exhibit 3 of Defendants’ Response to Plaintiff's Motion for Partial Summary Judgment on his Status as a Private Figure which is fully incorporated herein for all purposes); Various newspaper articles (See Exhibit 4 of Defendants’ Response to Plaintiff's Motion for Partial Summary Judgment on his Status as a Private Figure which is fully incorporated herein for all purposes); Development Agreement dated September 22, 2003 (See Exhibit 5 of Defendants’ Response to Plaintiff's Motion for Partial Summary Judgment on his Status as a Private Figure which is fully incorporated herein for all purposes); Court documents and Opinions from Cause No, G-03-811 styled Western Seafood ‘Company vs. United States of America, The City of Freeport, Texas in the U.S. District Court - Galveston Division (See Exhibit 6 to Defendants’ Response to Plaintiff's Motion for Partial Summary Judgment on his Status as a Private Figure which is fully incorporated herein for all purposes); Court hearing transcripts from Cause No. G-03-811 styled Westem Seafood Company vs. United States of America, The City of Freeport, Texas in the U.S. District Court - Galveston Division (See Exhibit 7 to Defendants’ Response toPlaintiff's Motion for Partial Summary Judgment on his Status as a Private Figure which is fully incorporated herein for all purposes); and 8. Deposition testimony of Walker Royall (See Exhibit 8 of Defendant’s Response to Plaintif’s Motion for Partial Summary Judgment on his Status as a Private Figure which is fully incorporated herein for all purposes). 9. Plaintiff's Third Amended Petition (See attached Exhibit 9). 10, Additional Deposition testimony of Walker Royall (See attached Exhibit 10), Mm. Argument Inanswers to written discovery in Cause No. G-03-81 1, the City of Freeport states that Lee Cameron, a City official, was contacted by a Blaffer heir who advised that the Blaffer heirs were interested in the development of the marina project. Ultimately, Royall, a Blaffer heir, sent a Letter of Intent dated June 26, 2002 to the City. (See Exhibit “1”) ‘The beginning of the marina project pre-dates the June 26,2002 Letter of Intent. Royall sent the Letter of Intent to Mayor Jim Barnett with the City of Freeport. That letter, authored and signed by Royall, begins the formal process for the development of the controversial marina project. That letter states in part as follows: “The City and the Developer (the parties) are working on a plan in which the Developer would acquire the land necessary for the development and build the project based on mutually agreeable specifications”... “The Developer would ‘maintain ownership of the project and the parties agree to consider a profit sharing program in which the risks may be shared.” (Emphasis added). Further, Royall agreed to use his “best efforts to acquire land owned by third-parties” for use in the marina project. (See Exhibit “2"). ‘The Maritime Trust Study (published in October, 2002) was initiated in September, 2001. (See Exhibit “3”, page 3). As part of that study, river front property owners were interviewed bythe Maritime Trust team. See (Exhibit “3”, page 5). Those owners include the Blaffer family (Plaintiff) who reported to the Maritime Trust team that they wanted to place their property into the ‘marina project and participate in the re-development. (See Exhibit “3”, page 53). By August, 2003, news articles were already being written about the controversial marina project. (See Exhibit “4”), The Facts published an article stating that City Council had approved the Development Agreement with Freeport Waterfront Properties. The article also identified the partnership as heirs of the Blaffer family (Royall). Other articles had concems with respect to a single developer (Plaintiff) developing this project without opening the project to other competitive bidders, ‘There was also concern that the City of Freeport was taking too much of the risk with respect to the financing of this particular project. Finally, several of these articles referenced the threats of eminent domain to take the property. (See Exhibit “4”). In September, 2003, the City of Freeport entered into a Development Agreement. That agreement is with Freeport Waterfront Properties, LP. and states that Royall is the individual who is the “project developer’s representative” with full authority to act on behalf ofthe project developer with respect to all matters arising out of said agreement, Royall is the person identified in the agreement as the one who is responsible for overseeing all aspects of design, construction and development of the project, and to work closely with the City’s consultant, on behalf of the project developer. (See Exhibit “5”, page 24). (Emphasis added). ‘The contract also provides that Royall “shall have acquired or arranged to acquire”... all the Gore land, whether via the City’s assistance in negotiating a direct purchase of such lands by the project developer, or via the City’s exercise of its power of eminent domain and conveyance of such lands to the project developer”. (See Exhibit “5”, pages 18-20). (Emphasis added), Further, the contract provides that to the extent the City attorney determines itis legally able to do so, the City‘would cooperate with and assist Royall by legal action in the acquisition of the Gore land. (See Exhibit “5”, page 32). In addition to his agreement to take over full authority for the project and agreeing to initiate and acquire (via eminent domain proceedings) private land, such as the “Gore land”, Royall agreed to take a six million dollar loan of taxpayer money from the City of Freeport and its citizens (See Exhibit “5", page 8). In other words, when Royall satisfied his commitment to acquire the private Jand (via eminent domain) he was to receive six million taxpayer dollars. Also, in September, 2003, Defendant Western Seafood Company discovered that the United States Anmy Corps of Engineers had sought a permit application to install piers impeding Defendant's navigation rights. As a result, Defendant Western Seafood initiated a lawsuit against the City of Freeport, Freeport Economic Development Corporation, and the United States of America, That case was eventually decided in The United States Court of Appeals (5" Cireuit), (See Exhibit “6"). Starting with the Letter of Intent in June 2002, Royall had a “plan” to acquire the land to be ‘used in the marina project. His plan was revealed with the execution of the Development Agreement in September, 2003. That agreement makes it clear that Plaintiff and/or the City of Freeport and/or the Freeport Economic Development Corporation planned to initiate condemnation proceedings to acquire land from Defendant Western Seafood Company (also identified as the Gore land). (See Exhibit “5”), At the preliminary injunction hearing in Cause No. G-03-811 on December 5, 2003, the Court heard arguments from the City of Freeport Attorney. The original plan was for the City to own and operate the marina. However, John Hightower, the City of Freeport attorney, stated that the Blatfer family “came forward and said, hey, we would like to do this project for you" (i.e., build themarina project). Mr. Hightower also judicially admits that the developer (Plaintiff) would be the person who would make a subsequent permit application to the U. S. Army Corps of Engineers. (See Exhibit “7 Atthe status conference for Cause No. G-03-CV-811 on April 8, 2004, Mr. Hightower stated that Mr. Royall was the principal and the person in charge. (See Exhibit “7”). ‘The Freeport Economic Development Corporation initiated its condemnation suit against ‘Western Shellfish Corporation in Cause No. CI-032662 in the County Court at Law Number Two of Brazoria County on August 16, 2004. The Freeport Economic Development Corporation initiated its condemnation proceeding against Western Seafood Company in Cause No, C1-032664 in County Court at Law Number Three of Brazoria County on August 16, 2004. The Freeport Economic Development Corporation received an unfavorable judgment in both of those cases and have appealed the trial court’s decision. (See Exhibit“6"). Plaintiffinitiated his defamation lawsuit ‘on August 9, 2004, Attached in Exhibit “4” is a flyer authored by the City of Freeport and at least twenty-one (21) news articles discussing the controversial marina project, Defendant Wester Seafood Company and/or Plaintiff. The flyer identifies Plaintiff, as a general partner, who “came forward” to establish a partnership with the City of Freeport for the purposes of the marina project. Royall had meetings with City of Freeport officials on the strategy to acquire the Gore land. (See Exhibit 10, page 69). Royall claims that he is not a “big fan” of eminent domain, (See Exhibit 10, page 137). Regardless, his plan and strategy through his negotiations and execution of the Development Agreement requires him to use eminent domain (via the City’s assistance) to acquire the Gore land. (See Exhibit 5, pages 18 and 20 and 32). Royall was fully aware of the City of Freeport lawsuits moving forward on the condemnation proceedings (See. Exhibit 10, pages 138-139). Royall had decided to move forward on the marina project without the Gore property. (See Exhibit 10, page 135). Despite that fact, the City of Freeport continues to pursue the matter on appeal. ‘Thus, there are currently three (3) cases pending concerning the marina project and the controversy surrounding it. Plaintiff has not and does not contend that any alleged defamatory statements were made prior to the publication of the website in late March or early April, 2004. As of that time, Plaintiff had already entered into a written contract agreeing to use civil action to acquire private property via eminent domain. City officials had publically threatened eminent domain. A lawsuit had been filed by Wester Seafood seeking an injunction to dissolve a permit application by the U.S. Army Corp of Engineers. After the publication of the website, Plaintiff and the City of Freeport followed through with their threats and initiated two lawsuits to acquire private property via eminent domain (attempting to carry out the “plan”). All communications which are the subject of the website are communications which are related to the controversial marina project and Plaintiff's role in that project. As such, all communications are protected by the judicial proceedings privilege for which Plaintiff cannot maintain a civil action for defamation. Considering all of the evidence starting with his Letter of Intent, his Maritime Trust Study and his Development Agreement, Royall has put himself atthe front of the line when it comes to the marina project and this controversy. All of the alleged statements on the website which Plaintiff contends are defamatory are statements that have been made either in the course of a judicial proceeding or have been made in contemplation of or preliminary to anticipated judicial proceedings. Therefore, all communications are privileged as a matter of law. WHEREFORE, PREMISES CONSIDERED, Wright Gore, Jr., Western Seafood Company, and Wright Gore, III, Defendants in the above-entitled and numbered cause prays thatthis court grant their Motion for Summary Judgment and for such other and further relief, both general and special, at law and in equity, to which these Defendants may be justly entitled. Respectfully submitted: TEKELL, BOOK, MATTHEWS & LIMMER BY: WILLIAM BOOK TBA NO. 02622000 MATT W. CHILDS TBA No. 04202050 4300 One Houston Center 1221 McKinney Houston, Texas 77010 (713) 222-9542 (713) 655-7727 (Facsimile) ATTORNEY FOR DEFENDANT Wright Gore, IIL HAYS, MCCONN, RICE & PICKERING BY: BRUCE C. GAIBLE, TBA NO. 07567400 400 Two Allen Center 1200 Smith Street Houston, Texas 77002 (713) 654-1111 (713) 650-0027 (Facsimile) ATTORNEY FOR DEFENDANTS. Wright W. Gore, Jr. and ‘Western Seafood Company CERTIFICATE OF SERVICE Thereby certify that on this the day of April, 2008, true and correct cop(ies) of the foregoing instrument were forwarded to all counsel of record via Hand Delivery, Certified Mail, Return Receipt Requested and/or regular mail, and/or via facsimile. Matthew W. Childs —