Full opinion text
OPINION Opinion by: SARAH B. DUNCAN, Justice. ABC appeals the denial of a summary judgment on the Gills’ defamation and non-defamation claims arising out of the news gathering process for, and the broadcast of, a Day One news program. We hold this court is statutorily authorized to exercise jurisdiction over all of the Gills’ claims, including the non-defamation claims ABC does not defend on free speech grounds, and ABC is entitled to judgment as a matter of law. We therefore reverse the trial court’s order in its entirety and render judgment in ABC’s favor. I. Factual and Procedural Background On March 2,1995, ABC aired a Day One news program that investigated why the Resolution Trust Corporation had recovered only a small part of the cost of the savings and loan bailout from the officers, directors, and other insiders at failed S & Ls, particularly in Texas and at Gill Savings Association in San Antonio. Three months after the program aired, ABC was sued by the Gills — Christopher Gill, his wife Laura, and his brothers Richardson and Peter. Initially, the Gills alleged ABC defamed them, invaded their privacy, and trespassed on their property in preparing for and airing the broadcast. The Gills later added additional defamation claims, as well as claims for tortious interference with contractual and fiduciary relationships, and abuse of process arising out of the news gathering process. ABC moved for summary judgment on all of the Gills’ claims under subsections (c) and (i) of Rule 166a, Tex.R. Civ. P., but the trial court denied ABC’s motion in its entirety. II. Jurisdiction As a preliminary matter, we must determine the scope of our jurisdiction. As a general rule, an interlocutory order denying a motion for summary judgment is not appealable. E.g., Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex.1994). However, an interlocutory appeal is permitted in certain cases involving the constitutional right to free speech: (a) A person may appeal from an interlocutory order of a district court, county court at law, or county court that: (6) denies a motion for summary judgment that is based in whole or in part upon a claim 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.... Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(6) (Vernon Supp.1998). ABC, in its capacity as a member of the electronic media, filed a summary judgment motion based in part upon defenses arising under the free speech clauses of the United States and Texas Constitutions and the law of libel contained in chapter 73. Therefore, under the plain language of section 51.014(a)(6), the entirety of the trial court’s order denying ABC’s motion is appealable. See Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 428-29 (Tex.App. — Waco 1997, writ denied). But see KTRK Television, Inc. v. Fowkes, 981 S.W.2d 779, 787 (Tex.App. — Houston [1st Dist.] 1998, pet. denied) (stating in dicta that section 51.014(a)(6) confers jurisdiction to consider only those claims that are “defended in whole or in part on free speech grounds”). III. Summary Judgment Evidence The Gills argue we may not consider as summary judgment evidence certain documents received from and statements attributed to certain employees and former employees of the FDIC because this evidence was excluded by a June 12, 1997 court order. We disagree. The June 12 order was not self-executing or unconditional. Rather, it excluded evidence only if the Gills provided the FDIC with a copy of the order and the information the FDIC requested, and the FDIC thereafter refused to permit depositions. The conditional nature of the order was in fact implicitly recognized by the Gills when they filed objections to evidence that might have been encompassed by the June 12 order. But the Gills failed to obtain rulings on these objections, and the correspondence attached to their objections establishes the Gills failed to meet the condition imposed by the June 12 order. We will therefore consider all of ABC’s summary judgment evidence. IY. Standard of Review Whether an order grants or denies a motion for summary judgment, we apply the same de novo standard of review on appeal. See Valores Corporativos, S.A. de C.V. v. McLane Co., 945 S.W.2d 160, 162 (Tex.App. — San Antonio 1997, writ denied); San Antonio Express News v. Dracos, 922 S.W.2d 242, 247 (Tex.App. — San Antonio 1996, no writ). We will thus reverse an order denying a traditional motion for summary judgment under Rule 166a(e) and render judgment in the mov-ant’s favor only if the summary judgment evidence establishes there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law on a ground set forth in the motion. See Tex.R. Civ. P. 166a(c). We will reverse an order denying a “no evidence” motion for summary judgment under Rule 166a(i) and render judgment in the movant’s favor only if the respondent fails to produce summary judgment evidence raising a genuine issue of material fact on each challenged element. See Tex.R. Civ. P. 166a(i). In deciding whether the summary judgment evidence raises a genuine issue of material fact, we view as true all evidence favorable to the respondent and indulge every reasonable inference and resolve all doubts in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). V. Trespass Christopher and Laura Gill allege ABC film crew members entered and filmed two of their properties, the Spanish Main Apartments and the Greenspoint office building, without their permission. However, there is no trespass without an entry upon land, Railroad Comm’n v. Manziel, 361 S.W.2d 560, 567 (Tex.1962), and there is no summary judgment evidence of an entry upon either property by any ABC employee. We therefore reverse the trial court’s denial of ABC’s motion for summary judgment on the Gills’ trespass claim and render judgment in ABC’s favor. VI. Invasion of PRIVACY Christopher and Laura Gill also allege ABC’s filming of the Spanish Main Apartments and the Greenspoint office building invaded their privacy. However, because the Day One broadcast “provided the public with nothing more than could have been seen from a public street,” it cannot constitute an invasion of privacy. Wehling v. CBS, 721 F.2d 506, 509 (5th Cir.1983). We therefore reverse the trial court’s denial of ABC’s motion for summary judgment on the Gills’ invasion of privacy claim and render judgment in ABC’s favor. VII. Abuse of PROCESS The Gills allege ABC committed an abuse of process by illegally obtaining information about them, falsely portraying the RTC’s investigation as inadequate, and using this illegally gained information and false portrayal to pressure the federal government into reopening the case against them. However, there is no summary judgment evidence ABC wrongfully obtained and used a writ of process in a suit. See Tandy Corp. v. McGregor, 527 S.W.2d 246, 249 (Tex.Civ.App.—Texarkana 1975, writ ref'd n.r.e.); Blackstock v. Tatum, 396 S.W.2d 463, 467-68 (Tex.Civ.App.—Houston 1965, no writ). We therefore reverse the trial court’s order denying ABC’s motion for summary judgment on the Gills’ abuse of process claim and render judgment in ABC’s favor. VIII.Tortious Interference The Gills allege ABC tortiously interfered with their contractual and fiduciary relationships with four former Gill Savings agents or employees by secretly and maliciously obtaining from them private, personal, and confidential information. However, the Gills failed to present any evidence of the necessary precursor of their tortious interference claim—the existence of a contractual or other relationship requiring confidentiality between the former agents or employees and the Gills at the time of their interviews with ABC. See ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.1997). Indeed, there is no summary judgment evidence suggesting ABC even interviewed one of the former employees or agents, Bob Sherwood. Nor is there any evidence two of the former employees or agents, Paul Tillman and Randy German, owed the Gills any contractual or fiduciary duties; at most, there is evidence these two men may have owed duties to Gill Savings. Finally, while there is evidence Cathy Buxie may have performed some personal accounting work for the Gills while she was an employee of Gill Savings, there is no evidence she was subject to either a contractual or professional confidentiality requirement. We therefore reverse the trial court’s order denying ABC’s motion for summary judgment on the Gills’ tortious interference claim and render judgment in ABC’s favor. IX.Defamation We now arrive at the Gills’ primary claims: ABC defamed them in the statement promoting the March 2, 1995 Day One broadcast and thirty-eight statements in the broadcast (Appendix 1), in the broadcast as a whole (Appendix 1), and in questions posed and statements made by ABC staff members during the news gathering process (Appendix 2). ABC contends it is entitled to summary judgment on these claims because it either conclusively negated at least one essential element of each claim or the Gills failed to produce some evidence on each challenged element. In discussing these claims, we quote the allegedly defamatory statements in context and underline the specific complained-of statements. A. Broadcast Defamation 1. The Promotional and Introductory Statements (Promotional Statementl and Broadcast Statements 2-6) In Promotional Statement 1 and Broadcast Statements 1-6, ABC promoted and introduced its story on the RTC: While Washington talks about cutting school lunches, big shots are living high ... after losing tens of billions of your tax money. What’s worse, we can’t get it back. If this doesn’t make you mad, you’re not paying attention.[1] FORREST SAWYER, ABC News: [voice-over] A story that will make you see red-about big shots living high after losing billions of your tax dollars.i2] ART LEISER: You talk about, ‘Well, the government’s going to lose $500 billion.” That’s us! That’s you and me.[3] BILL DePUGH: As a taxpayer. I figure I got screwed. Again.[4] FORREST SAWYER: Robert Krulwich uncovers a shocking new twist in the biggest financial scandal in U.S. histo-[ ] [Commercial Break] Savings and Loan Questions ANNOUNCER: From T.V.-l in New York, Day One continues. DIANE SAWYER: Remember when we were all up in arms in this country about the savings and loan scandal, its combination of wild lending, greed, and in some cases, I guess, bad luck?C6] ABC contends these statements are not assertions of fact and therefore not actionable as a matter of law. We agree. To be actionable, a statement must constitute or contain an assertion of an “objectifiably verifiable” fact. Burch v. Coca-Cola Co., 119 F.3d 305, 325 (5th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 871, 139 L.Ed.2d 768 (1998) (citing, e.g., Yiamouyiannis v. Thompson, 764 S.W.2d 338, 341 (Tex.App. — San Antonio 1988, writ denied), cert. denied, 493 U.S. 1021, 110 S.Ct. 722, 107 L.Ed.2d 742 (1990)). Because rhetorical hyperbole is not subject to objective verification, see id., it is not provable as false and therefore not actionable in a case against a media defendant. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986)). Statements of opinion are likewise not actionable under Texas law. Carr v. Brasher, 776 S.W.2d 567, 570 (Tex.1989). Whether a statement is rhetorical hyperbole, opinion, or an actionable assertion of fact is a question of law for the court. Carr, 776 S.W.2d at 570. “Rhetorical hyperbole” is “extravagant exaggeration” “employed for rhetorical effect.” WebsteR’s Ninth New Collegiate Dictionaey 592, 1011 (1988 ed.). This is precisely the purpose and effect of Promotional Statement 1 and Broadcast Statements 2-3 and 5-6. Promotional Statement 1 provokes viewer interest by linking “cutting school lunches” with “big shots living high ... after losing tens of billions of your tax money,” while Broadcast Statements 2-3 and 5-6 use similar exaggeration and the provocative personal (“you and me”) to entice viewers into “staying tuned.” Just as clearly, Broadcast Statement 4 is no more than a statement of opinion by Mr. DePugh, the head of the RTC’s investigatory efforts in Texas. Mr. DePugh did not assert he “got screwed” “[a]gain” “[a]s a taxpayer” as a matter of verifiable fact. He said he “figured” he did, and this statement of his belief is not subject to proof. It just is. We therefore hold Promotional Statement 1 and Broadcast Statements 2-6 are not actionable as a matter of law and reverse the trial court’s order and render judgment in ABC’s favor on the Gills’ defamation claims arising out of these statements. 2. The RTC and Texas S & L Losses (Broadcast Statements 7-9) In Broadcast Statements 7-9, ABC explained the function of the RTC and its performance of that function — the central inquiry of the segment: FORREST SAWYER: What a scandal it was. At the end of the day, it could cost us $500 billion. You know, the government told us they were going to set up the Resolution Trust Corporation, the RTC, to collect at least some of that money and go after the had guys.[ ] DIANE SAWYER: And it’s now been six years. The term of the RTC is about to run out. And a good time, I think, to go back and look and see what it accomplished. FORREST SAWYER: Exactly what we’ve done. We went to Texas, the state where American taxpayers lost at least $25 billion.[8] Now, so far in Texas, the RTC has recovered only about one tenth of one percent from the people who ran those institutions and were responsible for all those bad loans.[9] ABC contends these statements are true or substantially true. We agree. In defamation suits against media defendants, the “ ‘plaintiff must bear the burden of showing that the speech at issue is false....’” McIlvain v. Jacobs, 794 S.W.2d 14,15 (Tex.1990) (quoting Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986)). Falsity presents a question of law “[i]f the underlying facts as to the gist of the defamatory charge are undisputed.” See id. at 16. A statement is substantially true if it is no more damaging than a true statement would have been. Id. In Broadcast Statements 7-9, Day One’s anchors introduced the story with statements regarding the scope and effect of S & L losses and the effect of these losses on taxpayers. The truth or substantial truth of these statements is established not only by the summary judgment evidence, including RTC reports, but also by federal statutory law. The RTC was created in 1989 with the passage of the Financial Institutions Reform, Recovery and Enforcement Act and charged with “resolving” failed thrifts. Pub.L. No. 101-73 § 501(b), 103 Stat. 183, 369 (1989) (codified at 12 U.S.C.A. § 1441a(b)(l)(A) (1998)); Pub.L. No. 101-73 § 101(7), 103 Stat. 183, 187 (1989) (published at 12 U.S.C.A. § 1811 Note (1998)). The RTC was thus authorized to assert the failed thrifts’ causes of action against persons whose wrongful conduct allegedly contributed to the thrifts’ losses. See, e.g., 12 U.S.C.A. § 1821(k) (personal liability of officers and directors). However, while the RTC’s own documents and testimony before the Senate Banking Committee establish the S & L bailout in Texas cost taxpayers at least $25 billion by the time the Day One broadcast aired, other summary judgment evidence establishes the RTC recovered only a small fraction of that amount from S & L officers and directors. Broadcast Statements 7-9 are thus true or substantially true. Accordingly, we reverse the trial court’s order and render judgment in ABC’s favor on the Gills’ defamation claims arising out of these statements. 3. The RTC’s Failure to Sue the Gills (Broadcast Statements 10-20) In Broadcast Statements 10-20, ABC questioned why the RTC had not recovered more from Texas S & L officers, directors, and other insiders, particularly the Gills: What went wrong?[10] Well, we sent Robert Krulwich to San Antonio to find out. ROBERT KRULWICH, ABC News: This used to be San Antonio Savings. They lost more than a billion dollars here. And this used to be Bexar Savings. They lost $686 million here. And this place is Gill Savings. It went bust and lost $1.4 billion. That’s one thousand, four hundred million dollars, [voice-over] And since Gill had the biggest losses here, we wondered how the RTC handled the Gill case. Gill Savings was founded 20 years ago in Hon-do, Texas,[11] when the Gill family bought out a small town S & L called Medina Savings. JACKIE WINKLER: The Gills were those were the rich city folks.1:121 You know, we’re — we’re talking about Hon-do, Texas, population 5,000, and they were just a different breed from from the folks here in Hondo. ROBERT KRULWICH: [voice-over] Jackie Winkler of Hondo remembers that once the Gills took over the S & L, suddenly its loan portfolio began to grow.™ Under the direction of Christopher Gill, who declined to be interviewed for this broadcast,[M] Gill Savings went from a mere $9 million in assets to a spectacular $1 billion. JACKIE WINKLER: You know, when you take it from $9 million to a billion in just a very few years, it things can’t grow healthy and grow that fast, right?[15] ROBERT KRULWICH: Well, apparently, that is right, at least according to this in-house document, a memo prepared by the RTC’s own lawyers and investigators and obtained by Day One. [voice-over] The memo focuses on three loans and claims top officers who ran Gill Savings engaged in “negligent mismanagement, ” “fraudulent lending practices, ” “self-dealing, ” “insider abuse,” “excessive compensation.” Investigators concluded that those loans were ‘negligently and imprudently made without full and current appraisals.™ [interviewing] So if the Gills were making loans without appraisals-ART LEISER: They were violating the law.lin ROBERT KRULWICH: [voice-over] Art Leiser was chief bank examiner for the state of Texas for 16 years, [interviewing] Why didn’t somebody say, “Hey, you can’t do this”? ART LEISER: We did.™ ROBERT KRULWICH: What’d they do? ART LEISER: Well, they subsequently went broke.™ ROBERT KRULWICH: [voice-over] And then, as happened all over Texas, teams of RTC investigators moved in. 1st RTC OFFICER: You may have guessed why we’re here. ROBERT KRULWICH: [voice-over] The RTC took over 137 S & Ls in Texas. 2nd RTC OFFICER: I’m Larry Long. I’m be the managing agent of the Resolution Trust Corporation. ROBERT KRULWICH: [voice-over] They seized all records of loans and transactions. 3rd RTC OFFICER: Well, yeah. We’ll probably need to lock up things at night. ROBERT KRULWICH: [voice-over] They secured the buildings and then they were supposed to find and sue those responsible for the losses and get money back for the taxpayers. The Gills say they did nothing wrong, but the RTC’s team listed seven pages of allegations against the officers of Gill Savings and asked for authority to sue. Top RTC officials reviewed the claims and the filing of a civil lawsuit was approved by all of them. The Gills ivere never sued.™ ABC argues its questioning “[w]hat went wrong?” in Broadcast Statement 10, as well as Broadcast Statements 12, 13, and 15 regarding Mr. Winkler’s comments, are not actionable assertions of fact, while Broadcast Statements 11, 14, and 16-20 are true or substantially true. We agree. As discussed above in section IX.A. 1, rhetorical hyperbole and opinion are not actionable under Texas law. Broadcast Statement 10 plainly falls into the category of rhetorical hyperbole. ABC asked, given the RTC’s charge and the size of the bailout in Texas, “what went wrong?” This question was simply a set up for the story to follow. Just as clearly, Broadcast Statements 12, 13, and 15 are either expressions of opinion by Mr. Winkler or accurate characterizations of her opinions by the ABC anchor. And the summary judgment evidence conclusively establishes the truth or substantial truth of the facts underlying Mr. Winkler’s opinions, as well as Broadcast Statements 11, 14, and 16-20. Gill Savings was founded in the mid-1970s — approximately twenty years before this Day One aired — when the Gill family acquired what was then Medina Savings Association in Hondo, Texas. At the time of the purchase, the S & L had assets valued at approximately $9 million. By 1976, its asset value had tripled; and between 1976 and 1979, its asset and loan values more than doubled. In 1980, chief executive officer Christopher Gill embarked upon a strategic plan designed to create a “vertically integrated real estate enterprise” that invested heavily in commercial real estate developments, charging four to six points at the front end of acquisitions and construction loans and taking a fifty to eighty percent equity interest. As a result of this strategic plan, the S & L’s asset and loan portfolios increased dramatically — more than doubling in 1980 alone. By the end of 1984, Gill Savings listed assets and loans valued at more than $1.3 billion and almost $1 billion, respectively. Gill Savings’ rapid growth did not go unnoticed by the Federal Home Loan Bank Board. As early as 1980, and continuing until the Gills’ departure, FHLBB examinations criticized Gill Savings’ inadequate appraisal reports. As early as 1981, soon after Christopher Gill’s strategic plan was implemented, the FHLBB began criticizing Gill Savings’ heavy concentration in high-risk real estate loans. By 1985, the FHLBB concluded “[t]he association’s major land acquisition, development, and construction loans are imprudently underwritten and expose the association to undue risk.” Finally, in April 1986, because the association “fail[ed] to heed safe and sound banking practices and applicable regulations in the loan underwriting area,” the FHLBB proposed a supervisory agreement, which was in place by the end of July 1986. By year end, Gill Savings reported an annual net loss in excess of $100 million and a negative net worth of $85.9 million. Shortly thereafter, in April 1987, Christopher and Peter Gill resigned their officer and director positions. Two years later, in February 1989, federal regulators placed the S & L in conservatorship. By mid-1990, Gill Savings was closed. The subsequent payment of federal deposit insurance cost United States taxpayers $1.4 billion. In the wake of Gill Savings’ failure, the RTC investigated its officers, directors, and other insiders. Ultimately, in an internal “authority to sue” memorandum, RTC Senior Counsel Kathleen Flake and Counsel R. Lee Anderson recommended the RTC attempt to recover some part of the $1.4 billion loss from the “directors and officers who most significantly contributed to failure.” This recommendation was approved by the Assistant to the Chairman of the RTC, John F. Bovenzi, and concurred in by the RTC’s General Counsel, its Deputy General Counsel, and its Assistant General Counsel, as well as its Deputy Executive Director and Regional Director. Subsequently, the RTC’s attorneys drafted a complaint naming as defendants, among others, Christopher, Peter, and Richardson Gill. But the suit against the Gills was never filed. In sum, ABC accurately reported the rise and fall of Gill Savings and the RTC’s investigation of and allegations against the Gills. No more is required. McIlvain, 794 S.W.2d at 16 (holding the defendant established the substantial truth of its broadcast by proving it was consistent with the investigation and findings it reported); KTRK Television v. Felder, 950 S.W.2d 100, 106 (Tex.App. — Houston [14th Dist.] 1997, no writ) (same). The summary judgment evidence also conclusively establishes that, although Christopher Gill had two telephone conversations with an ABC staff member, he insisted these conversations be “off the record,” and he would not agree to an on-camera interview. Because the summary judgment evidence establishes Broadcast Statements 10-20 are either true or substantially true assertions of fact or not assertions of fact at all, we reverse the trial court’s order and render judgment in favor of ABC on the Gills’ defamation claims arising out of these statements. 4. The RTC’s Failure to Sue the Gills (Broadcast Statements 21-23) In Broadcast Statements 21-23, ABC asked an RTC lawyer why the RTC did not sue the Gills: [interviewing] Why didn’t the RTC sue the Gill family to- TOM HINDES: I’m not going to- ROBERT KRULWICH: -recover money for the taxpayers?[21] TOM HINDES: I’m not going to talk about specific cases. ROBERT KRULWICH: [voice-over] In Washington, Tom Hindes is the RTC’s lawyer in charge of recovering money from S & L wrongdoers. Often, he says, these lawsuits aren’t worth pursuing. TOM HINDES: Directors and officers are not the people with the most resources. ROBERT KRULWICH: But they’re the guys who did it. They’re the ones who did it. TOM HINDES: Well, they’re not the only ones who did it. ROBERT KRULWICH: But they’re the they ran the banks. They made these loans. They lost our money.t22] We should get it back. TOM HINDES: If you stole a million dollars from me and then you spent it and you don’t have any money I mean, I can sit here and say, “Well, I should get that million dollars back”-m ROBERT KRULWICH: But you’re not saying that all those people are impoverished now. TOM HINDES: I’m not saying all of them are impoverished and where the resources are there to pursue a cost-effective and a valid claim, we pursue those claims. ABC argues Broadcast Statement 21 is true, while Broadcast Statements 22 and 23 are not about the Gills. ABC also argues there is no evidence Broadcast Statement 22 was made with actual malice. The Gills contend the actual malice standard does not apply because they are not public figures and, even if it does, the statements directly accused them of making bad loans and losing taxpayer money, indirectly accused them of stealing a million dollars, and were made with actual malice. We disagree. To maintain a defamation action, a plaintiff must be referenced in the complained-of statement. Newspapers, Inc. v. Matthews, 161 Tex. 284, 339 S.W.2d 890, 893 (1960). A person is referenced in a statement if she is named or if those who knew and were acquainted with her would understand the statement referred to her. Id. Whether a plaintiff is referenced in a statement is a question of law. See id. Broadcast Statement 21 contains only one conceivable assertion of objectively verifiable fact — the RTC did not sue the Gills — and the summary judgment evidence conclusively establishes this statement is true. Just as clearly, Broadcast Statement 22 and 23, when viewed in context, are not about the Gills and thus not actionable by them. The statements do not name or reference the Gills; Krul-wich’s voice-over introduction of Hindes reflects he is speaking in general terms about why the RTC might not pursue a civil action against officers and directors; Hindes made it clear he would not discuss any particular case; and he did not. Therefore, the pronouns “they” and “you” in Broadcast Statements 22 and 23 must relate back to “officers and directors” in the previous sentence, not to the Gills. Moreover, even if Broadcast Statement 22 could be interpreted by a reasonable viewer as referencing the Gills, there is no summary judgment evidence suggesting the statement was made with actual malice. a. Applicability of the Actual Malice Standard The actual malice standard applies to general and limited-purpose public figures. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998). “The question of public-figure status is one of constitutional law for courts to decide.” Id. One “ ‘generally accepted test’ to determine limited-purpose public-figure status” is the three-part Trotter.fWaldbaum test. Id. at 571-72. Under this test, an individual is a limited-purpose public figure if (1) he or she has more than “a trivial or tangential role” (2) in a controversy that is sufficiently public to be discussed and the resolution of which will likely be felt beyond its immediate participants, and (3) “the alleged defamation [is] germane to the plaintiffs participation in the controversy.” Id. (citing Trotter v. Jack Anderson Enters., Inc., 818 F.2d 431, 433 (5th Cir.1987); Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296-98 (D.C.Cir.1980)). To decide whether a plaintiff had more than a trivial or tangential role in a public controversy, “we must first determine the controversy at issue” and then examine whether, with respect to this controversy, the plaintiff sought publicity, had access to the media, or “ ‘voluntarily engag[ed] in activities that necessarily involve[d] the risk of increased exposure and injury to reputation.’ ” McLemore, 978 S.W.2d at 572-73 (quoting Brewer v. Memphis Publ’g Co., 626 F.2d 1238, 1254 (5th Cir.1980)). (1) The Controversy The Gills contend no public controversy existed before ABC manufactured one. But this contention is conclusively disproved by the summary judgment evidence. In the early 1990s, a significant public debate arose over whether the RTC had adequately pursued officers, directors, and other insiders who contributed to the collapse of S & Ls across the country. This debate, which began quietly in 1992, long before ABC became interested in the story, was generated by the allegations of members of the public, current and former RTC employees, and United States Senators, particularly Senator John Kerry, of waste, fraud, and mismanagement in the RTC. The Senate Banking Committee thus held “whistleblower” hearings in September 1993 to determine whether the RTC had failed to aggressively pursue claims in Texas and elsewhere. Indeed, the chair of the committee, Donald W. Reigle, Jr., stated that it was “a very hot issue.” As a result of the hearings, the Treasury Department investigated and reported on the Dallas Office of the RTC’s Professional Liability Section. Although this report was generally favorable to the RTC, the summary judgment evidence establishes it was disputed by RTC insiders, and it ultimately generated still further controversy. See, e.g., Jack Anderson & Michael Bin-stein, A Texas-Size S & L Scandal, Wash. Post, June 27, 1994, at B08. As a result, Senator Kerry opined in a July 1, 1994 floor speech that “one of the biggest stories that has not been focused on, either by the media or by the Congress, lies in the RTC’s handling of lawsuits against savings and loan wrongdoers in Texas.” Both the Anderson & Binstein article and Senator Kerry singled out the RTC’s failure to pursue the officers, directors, and other insiders at Gill Savings — as the second largest S & L failure in Texas and the tenth largest in United States history — as a “glaring example” of the RTC’s mismanagement and its effect on taxpayers, who ultimately funded the bailout. It was these events, the summary judgment evidence establishes, that generated ABC’s interest in the controversy. Not, as the Gills contend, the other way around. However, contrary to ABC’s contention, the summary judgment evidence also establishes the controversy was not limited to the RTC’s performance of its charge. Rather, it extended to the collapse of the S & L industry, particularly in Texas, during the previous decade; the causes and costs of the ensuing bailout; and its aftermath, including the RTC’s performance, and it was this debate that formed the core of “a real dispute, the outcome of which affect[ed] the general public ... in an appreciable way.” Waldbaum, 627 F.2d at 1296. The summary judgment evidence also leaves no doubt that Christopher, Peter, and Richardson Gill played more than tangential roles in this controversy. (2) Christopher Gill From 1980 to 1987, Christopher Gill was at various times the chief executive officer of Gill Savings, and it thus became “a vertically integrated real estate enterprise” under his leadership. Indeed, in 1981, ’Christopher Gill publicly described the S & L’s goal to become one of the state’s top five S & Ls by 1986 and his strategic plan for achieving that goal. See Linda K. Gilliam, Sizzling S & L, Tex. Bus. Mag., Nov. 1981; Thomas W. Zippman, Texas S & L Scoffs at Weakness; San Antonio S & L Claims Nation’s Top Profitability, Wash. Post, Jan. 2, 1982, at E8. And Christopher Gill’s public role was not limited to Gill Savings. He also engaged in a concerted, public effort to prevent the passage of the 1986 Tax Reform Act, which he then maintained would cause a deep economic recession and which he now maintains was responsible for the collapse of the S & L industry. Gill conveyed his views in letters to bank and S & L presidents, members of the Texas Legislature, congressional leaders, governors, and the President and Vice President. Also reflective of Christopher Gill’s significant public role in the controversy was his appointment to the Blue Ribbon Committee established by Congressman Jim Wright to evaluate and make recommendations to stabilize the Texas banking industry. Indeed, the Committee’s position paper was in large measure authored by Christopher GUI. In light of Christopher GiU’s activities, we have no hesitancy in concluding he “voluntarily injected himself’ into the controversy by seeking publicity and voluntarily engaging in activities that necessarily increased his exposure and the risk of injury to his reputation. See McLemore, 978 S.W.2d at 573. Nor do we have any doubt it was the S & L controversy and its aftermath that generated the statements of which he complains in this suit. See id. at 572. (3) Richardson and Peter Gill Richardson Gill had no formal role in GUI Savings’ management after 1975, but he continued as an owner of GUI Savings and as an owner and officer of entities with extensive business dealings with Gill Savings. He was also a large borrower of GUI Savings and a focus of two independent investigations and a special examination by the Office of Thrift Supervision, each of which concluded GUI Savings’ loan committee — of which Peter Gill was a member— authorized loans characterized by the Office of Thrift Supervision as a “double land flip that allowed Richardson B. GUI to obtain over $3.3 mülion in two separate transactions ... and resulted in GUI Savings suffering losses in excess of $11.2 mülion.” Simüarly, three separate investigations commissioned by the GUI Savings’ successor board reported Peter GUI received excessive compensation, and both Richardson and Peter GUI might be liable for GUI Savings’ losses arising out of the GUI famüy’s personal use of the corporate aircraft. Both Richardson and Peter Gill were thus among the six officers and directors identified by the RTC in the draft complaint as potential defendants. And they, along with Christopher GUI, were also indicted and ultimately acquitted of criminal bank fraud charges. After the widely-publicized acquittal, Richardson, like Christopher, made numerous statements to the press. Unlike Christopher Gill, Richardson and Peter Gill did not seek publicity. But, like their brother, they voluntarily engaged in activities that necessarily increased their risk of exposure and injury to their reputations, and they had access to the media. We therefore conclude Richardson and Peter GUI, Uke their brother Christopher, became public figures for purposes of the controversy by “choosing to engage in activities that necessarily involved increased public exposure and media scrutiny,” “play[ing] more than a trivial or tangential role in the controversy and, therefore, [bearing] the risk of injury to [their] reputation[s].” McLemore, 978 S.W.2d at 573. Each is therefore subject to the actual malice standard. b. The Actual Malice Standard “[T]he actual malice standard is not satisfied merely through a showing of ill will or ‘malice’ in the ordinary sense of the term.” Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). Rather, to establish “actual malice” in the defamation context, the plaintiff must produce “clear and convincing evidence that the defendant acted with a knowledge of falsity or with a ‘high degree of awareness of ... probable falsity.’ ” Id. at 681, 109 S.Ct. 2678 (quoting Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964)). At a minimum, therefore, a defamation plaintiff must prove the defendant “ ‘entertained serious doubts as to the truth of his publication.’ ” Id. at 667, 109 S.Ct. 2678 (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)). “[A] plaintiff is entitled to prove the defendant’s state of mind through circumstantial evidence,” and “[i]n a case ... involving the reporting of a third party’s allegations, ‘recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.’ ” Harte-Hanks, 491 U.S. at 668, 688, 109 S.Ct. 2678 (quoting St. Amant, 390 US. at 732, 88 S.Ct. 1323). But evidence establishing a “[d]ifference of opinion as to the truth of a matter — even a difference of 11 to 1 — does not alone constitute clear and convincing evidence that the defendant acted with a knowledge of falsity or with a ‘high degree of awareness of ... probable falsity.’ ” Id. at 681, 109 S.Ct. 2678 (quoting Garrison, 379 U.S. at 74, 85 S.Ct. 209); see also HBO v. Harrison, 983 S.W.2d 31, 42 (Tex.App. — Houston [14th Dist.] 1998, no pet.) (“a difference of opinion among the people involved and represented” “does not prove that anyone involved in the production of the film subjectively believed the statements in the film were untrue”). Similarly insufficient is evidence the defendant made an “editorial choice to exclude certain information” or simply failed to investigate or verify information; rather, “[t]here must be evidence at least that the defendants purposefully avoided the truth.” Id. c. The Gills’ Actual Malice Evidence The summary judgment record does not contain any direct evidence that any Day One producer, anchor, or reporter made Broadcast Statement 22 with actual knowledge it was false or with a high degree of awareness it was false. Indeed, the contrary is established by the direct evidence — the affidavits of the story’s producers, William “Rocky” Kistner and Glenn Silber, and its correspondent, Robert Krulwich. Therefore, to sustain their summary judgment burden to produce some evidence of actual malice, the Gills argue an inference of actual malice may be gleaned from summary judgment evidence establishing ABC knew the RTC closed its investigation of the Gills in February 1992 for lack of merit and notified the Gills accordingly in a March 1992 letter. We cannot agree. Although the view espoused by the Gills was expressed during ABC’s conversations with Christopher Gill and its interviews with two RTC attorneys, Kip Byrne and Mark Greenwald, other sources expressed a different view, and it was this different view that Kistner, Silber, and Krulwich ultimately came to believe. In their affidavits, Kistner, Silber, and Krulwich describe the genesis of ABC’s interest in a story about the RTC’s performance in Texas; the materials Kistner and Silber reviewed and the people they interviewed; and how, after researching a number of failed Texas S & Ls, they determined Gill Savings was an appropriate illustration of a savings and loan failure and, in light of its charge, the RTC’s failure. Kistner and Silber reached this conclusion in light of former RTC lawyers’ and investigators’ repeated reference to Gill Savings “as an example of the RTC’s failure to pursue insiders of failed institutions,” as well as the memorandum requesting authority to sue the Gills and the draft complaint that was prepared but never filed — documents Kistner and Silber believed to be authentic and reliable and which contained detailed allegations that bad loans were made by Gill Savings. Conversely, Byrne’s interviewer did not believe Byrne at the time of the interview, and other sources said Byrne and Green-wald were “not on the level” and were “dirty.” Ultimately, Kistner’s and Silber’s sources substantiated much of what they had read in the June 1994 Anderson & Binstein article and in the transcript of Senator Kerry’s July 1, 1994 floor speech. They also learned — contrary to the Gills’ assertion the investigation was closed in February 1992 — the RTC in fact approved a $720,000 budget for the Gill case in May 1992, the Gill case was still open in April 1993 when it was transferred from Green-wald to another RTC attorney, the RTC’s outside law firm did not close its file until October 1994, and a “closeout memo” had never surfaced. Additionally, as ABC points out, the March 1992 letter did not signal a definitive end to the RTC’s investigation of the Gills; the letter goes on to say, “This is not to say that claims ... will not be pursued at a later date.” Thus, while Christopher Gill, Byrne, and Green-wald maintained the Gill investigation was closed in February 1992, their assertions were substantially belied by other sources, and ABC’s producers ultimately found these other sources more credible. In short, ABC producers made an “editorial choice” protected by the First Amendment. Consequently, that some people believed the RTC’s investigation of the Gills concluded in February 1992 cannot yield an inference of actual malice. The Gills next argue a jury could reasonably infer ABC purposefully avoided the truth — the falsity of the allegations in the authority to sue memorandum and the draft complaint — from evidence establishing ABC obtained a copy of the indictment in the criminal proceeding and knew the Gills had been acquitted but then refused to obtain and review the record in the criminal proceeding. We again disagree. As ABC points out, an acquittal does not establish the charge was false; it merely establishes the government failed to prove the charge beyond a reasonable doubt — a standard that does not obtain in and thus does not preclude a subsequent civil proceeding arising out of the same facts. State v. Benavidez, 365 S.W.2d 638, 640 (Tex.1963); City of Houston v. Dillon, 596 S.W.2d 212, 214 (Tex.Civ.App. — Houston [1st Disk] 1980, writ ref'd n.r.e.). Moreover, given the very limited and focused nature of the criminal proceeding and the much broader reach of the authority to sue memorandum and the draft complaint, it is difficult to see how reading the record in the criminal proceeding would have enabled ABC to determine the truth or falsity of most of the allegations in the proposed civil suit. The Gills next argue actual malice may be inferred from evidence suggesting the Day One “story was going to be killed if it did not tell a tale of negligence,” regardless of the truth of that story. In support of this contention, the Gills point to a note in an ABC document: “4. Could be resolved Before Jan. 95? put negligence Back in Kill story.” However, the Gills’ interpretation of this note is not supported by the summary judgment evidence. The note was item number four in a three-page, five-item list, entitled “NY Times— Monday Banking Bill.” This list does not refer to Gill Savings, the Gills, or the RTC, and the first three items, like its title, expressly refer to proposed legislation concerning the statute of limitations to be applied in cases against S & L officers and directors. Item three thus states: “Bill passed House neg. + fraud — Senate Bill? Conf. — somebody threw out negligence— Who?” Given this context, interpreting item four as evidence that ABC acted with reckless disregard for the truth amounts to “[m]ere surmise or suspicion of malice.” Schauer, 856 S.W.2d at 450. This evidence thus “does not carry the probative force necessary to form the basis of a legal inference of malice.” Id. Finally, the Gills argue actual malice may be inferred from evidence establishing ABC did not report either the many favorable comments about the Gills and their management of Gill Savings or the explanations by Christopher Gill and others of the “real” reasons for S & L failures generally and the Gill Savings’ failure in particular. However, as discussed above, ABC was not under a “legal obligation to present a ‘balanced view.’ ” Dolcefino v. Turner, 987 S.W.2d 100, 121 (Tex. App. — Houston [14th Dist.] 1998, pet. filed) (quoting Perk v. Reader’s Digest Ass’n, Inc., 981 F.2d 408, 412 (6th Cir.1991)). Rather, ABC was entitled to exercise editorial control and judgment. Harrison, 988 S.W.2d at 42. Accordingly, that ABC omitted information favorable to the Gills from the Day One broadcast is not evidence of actual malice. Because the only objectively verifiable assertion of fact in Broadcast Statement 21 was true, we reverse the trial court’s order and render judgment in ABC’s favor on the Gills’ defamation claims arising out of this statement. We also reverse and render judgment in ABC’s favor on the Gills’ defamation claims arising out of Broadcast Statements 22-23 because these statements are not about the Gills and there is no evidence Statement 22 was made with actual malice. 5. Laura and Christopher Gill’s Assets (Broadcast Statements 24-27) As the Gills correctly contend, Laura Gill was never a Gill Savings officer or director or a participant in its management. In short, Laura Gill was “never involved in Gill Savings.” She was therefore referred to only in Broadcast Statements 24-27: Well, were the Gills too poor to sue?1241 We checked and discovered that after Gill Savings went broke, Christopher Gill and his wife still owned or were partners in the Butterfield apartments, the Spanish Main apartments, Walnut Grove apartments, Briarbend apartments, all of the Austiiu-San Antonio area. They also had a vacation home in Beaver Creek, Colorado, a posh ski resort outside of Vail, not to mention another vacation home on the Texas Gulf coast, a 2,000-acre ranch and a residence in the most exclusive part of San Antonio.twAnd the memo shows the RTC itself determined that Christopher Gill had at least $3.7 million.[26] So they had money.™ ABC contends Broadcast Statement 24 is not actionable because it is not an assertion of fact, and Broadcast Statements 25-27 are not defamatory and are substantially true, and the remaining broadcast statements are not about and thus not actionable by Laura Gill. We agree. A statement is defamatory if it “tends to injure a living person’s reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person’s honesty, integrity, virtue, or reputation.” Tex. Civ. PRAC. & Rem.Code Ann. § 78.001 (Vernon 1996). Whether the words used are capable of a defamatory meaning is a question of law. Musser v. Smith Protective Sews., Inc., 723 S.W.2d 653, 654 (Tex.1987). The allegedly libelous statements must be construed “as a whole, in light of surrounding circumstances based upon how a person of ordinary intelligence would perceive the entire statement.” Id. at 655. Broadcast Statements 1-23 and 28-39 do not name or refer to Laura Gill and are therefore not actionable by her. See, e.g., Matthews, 339 S.W.2d at 893-94. Nor is Broadcast Statement 24 actionable by any of the Gills; it is not an assertion of fact but at best rhetorical hyperbole. See Milkovich, 497 U.S. at 19-20, 110 S.Ct. 2695. And Broadcast Statements 25-27 are simply not defamatory as a matter of law. That a person has substantial assets does not “tend[ ] to injure a living person’s reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach [his] honesty, integrity, virtue, or reputation.” Tex. Civ. Prac. & Rem.Code Ann. § 73.001. Moreover, the summary judgment evidence establishes these statements were substantially true: Gill Savings was placed under the conservatorship of the FSLIC in February 1989 and closed in June 1990; RTC investigators estimated Christopher Gill’s net worth at $3.7 million; and, before February 1989 and continuing after June 1990, Christopher and Laura Gill owned or were partners in each of the listed assets — and others not mentioned by ABC — except they did not acquire the Briarbend Apartments until 1993 and their interest in the 2000-acre ranch was limited to an undivided interest in 1259 acres. The facts as reported by ABC are thus plainly no more “damaging” than the truth. Likewise of no moment is whether the Gills lived in an exclusive part of San Antonio or the most exclusive part. As a matter of law, these discrepancies do not affect the substantial truth of the statements. Because Broadcast Statements 1-23 and 28-39 are not about Laura Gill, we reverse the trial court’s order and render judgment in ABC’s favor on her defamation claims arising out of these statements. We also reverse and render judgment in ABC’s favor on the Gills’ claims arising out of Broadcast Statement 24, because it is not an assertion of fact, and Broadcast Statements 25-27, because they are not defamatory and are substantially true as a matter of law. 6. Political Pressure as an Explanation (Broadcast Statements 28-29) In Broadcast Statements 28-29, ABC explored one RTC attorney’s analysis of the RTC’s failure to pursue the Gills: ROBERT KRULWICH: [voice-over], ... So why didn’t the RTC sue? SHARON HOWARD: Well, I can’t believe it just fell through the cracks, so I have to believe that there was some other kind of pressure brought to bear. ROBERT KRULWICH: Attorney Sharon Howard was part of the RTC’s money recovery team in Dallas and she smelled politics.™ SHARON HOWARD: What makes me think that there may have been some political motivation is the fact that the major complex cases were being retained in Washington and those cases somehow, from the ones that I’ve seen, particularly from San Antonio, the cases %oere not pursued. ROBERT KRULWICH: So somebody wanted those cases back in Washington. SHARON HOWARD: Uh-huh. ROBERT KRULWICH: And somebody who got them back in Washington didn’t prosecute them. SHARON HOWARD: Right.™ ABC contends these statements are not assertions of fact. We agree. These statements are, quite plainly, expressions by Ms. Howard of her opinion that political pressure may have been a factor in the RTC’s failure to sue the Gills. See Evans v. Dolcefino, 986 S.W.2d 69, 78 (Tex.App. — Houston [1st Dist.] 1999, no pet. h.). And, while the Gills correctly contend ABC compiled this segment from pieces of its interview with Ms. Howard, a review of the whole reflects ABC did so in a manner that accurately stated her opinion. Consequently, these statements are not actionable under Texas law, and we therefore reverse the trial court’s order and render judgment in ABC’s favor on the Gills’ defamation claims arising out of these statements. 7. Failure to Issue Subpoenas as an Explanation (Broadcast Statements 30-35) In the next five statements, ABC explored the extent to which the RTC’s failure to issue subpoenas played a role in its failure to fully accomplish its charge: BILL DePUGH: Things are delayed. Things are set aside. Certain tasks are not done that might lead to certain people}3® ROBERT KRULWICH: [voice-over] Bill DePugh had been a government investigator for more than 30 years.' Once chief of criminal investigations for the IRS in Manhattan, he had now become the RTC’s head of investigations in Texas and he, too, was suspicious of his own bosses. * BILL DePUGH: They wouldn’t give us subpoenas. They wouldn’t answer phone calls. They lied to us. I mean, you’ve I figured, “What’s going on here?” ROBERT KRULWICH: [voice-over] Well, one thing wasn’t going on. The RTC never issued a single subpoena in its investigation of the Gills}3® The memo shows they did not demand to see the Gills savings accounts or certificates of deposit or stocks or bonds.13® And DePugh says this happened in case after case. BILL DePUGH: Now, if we have subpoena power and do not use it to follow that money trail and find out where the assets are hidden or where they went or how they got there, we’re not doing our job.13® TOM BURNSIDE: I mean, one of the big things that you had to do in Texas was you had to figure out ‘Where’d the money go?” ROBERT KRULWICH: [voice-over] Tom Burnside left a good corporate law job in St. Louis and worked side by side with Bill DePugh in Dallas. He, too, says subpoenas are essential to getting money back. TOM BURNSIDE: The people that were running these institutions are smart people. They’re not going to leave notes in their files saying, “Ha, ha! I took the money and this is where you’re going to find it.”1341 ROBERT KRULWICH: [voice-over] But in Washington, Tom Hindes says subpoenas aren’t always necessary. TOM HINDES: We have ability to determine whether people have assets or not without using subpoenas. ROBERT KRULWICH: [voice-over] He says that, at first, it was not clear the RTC had been given full subpoena power by Congress, so they decided to use them very sparingly. [interviewing] You were going to go out and look around for documents and everybody would just hand them to you. “Here, take my financial statements. Here, look through my bank account. Here, find out all my stocks and bonds. Here, check all the things that I have hidden in my house. ” No one’s going to do that.13® TOM HINDES: Well, it may surprise you to know that there are a lot of people who do that. Sen. JOHN KERRY, (D), Massachusetts: The results of this lack of subpoena were catastrophic. ROBERT KRULWICH: [voice-over] Last year, when Senator John Kerry asked about the lack of subpoenas in Texas, the RTC reported back it hadn’t issued a single subpoena in about two thirds of its failed S & Ls. Sen. JOHN KERRY: There’s a pattern of avoidance here that raises very serious questions about whether or not there was political influence. ABC argues these statements are not defamatory of the Gills as a matter of law. We agree. Whether the RTC had subpoena power and whether it should have exercised it in the Gill case did not does not expose the Gills to “public hatred, contempt or ridicule, or financial injury,” nor does it “impeach [their] honesty, integrity, virtue, or reputation.” Tex. Civ. Prac. & Rem.Code Ann. § 73.001. We therefore reverse the trial court’s order and render judgment in favor of ABC on the Gills’ defamation claims arising out of these statements. 8. The Criminal Proceeding (Broadcast Statements 36-37) In the next two statements, Senator John Kerry explained the result of the criminal proceeding against the Gills: ROBERT KRULWICH: [voice-over] Senator Kerry has taken a particular interest in the Gill case. Sen. JOHN KERRY: Well, I took an interest in that case because it is one of those cases where you have a very significant loss, but also because there was a criminal investigation. ROBERT KRULWICH: What happened in the criminal proceeding? Sen. JOHN KERRY: In the criminal :proceeding, there was some 'presentation of evidence to a judgeJ361 He found there ^vas insufficient evidence for a criminal finding and so that was dismissed.1^ ABC contends Senator Kerry’s statements are true or substantially true. We agree. The summary judgment record conclusively establishes that, after the prosecution presented its case, the trial court granted the Gills’ motion for a judgment of acquittal. We therefore reverse the trial court’s order and render judgment in favor of ABC on the Gills’ defamation claims arising out of these statements. 9. The Statute of Limitations and the Failure to File a Civil Suit (Broadcast Statements 38-39) In the last two broadcast statements of which the Gills complain, ABC concluded this aspect of its story: ROBERT KRULWICH: [voice-over] But Senator Kerry wondered why didn’t the RTC simply file a civil suit for money, a much easier standard? Sen. JOHN KERRY: Oh, a much easier standard. A much easier standard and a clear standard to be able to try to recoup some money. ROBERT KRULWICH: [voice-over] But by the time the judge dismissed the Gills’ criminal case, the time to sue had run out.im [on camera] So no court ever got the chance to decide if the Gills owe the taxpayers money and, as of this moment, except for one settlement with a Gill lawyer, the taxpayers got nothing back in the Gill cose.[39].... ABC contends Broadcast Statement 38 is not defamatory as a matter of law, while Broadcast Statement 39 is true or substantially true. We agree. Whether the statute of limitations had run on the tort claims outlined in the RTC’s draft complaint did not tend to expose the Gills “to public hatred, contempt or ridicule, or financial injury” nor would it “impeach [their] honesty, integrity, virtue, or reputation.” Tex. Civ. Prao. & Rem.Code Ann. § 73.001 (Vernon 1996). And, taken in context, Broadcast Statement 39 plainly refers to the RTC’s not having filed a civil recovery suit against the Gills, which the summary judgment evidence conclusively establishes is true. We therefore reverse the trial court’s order and render judgment in favor of ABC on the Gills’ defamation claims arising out of these statements. B. Defamation ARising Out of the Broadcast as a Whole The Gills contend the March 2, 1995 Day One broadcast as a whole defamed them. However, a series of statements is not and cannot be actionable when no statement within the series is actionable. See Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex.1995) (rejecting slander by implication when each statement in a series was true, qualifiedly privileged, or made without actual malice); Fowkes, 981 S.W.2d at 789. We therefore reverse the trial court’s order and render judgment in ABC’s favor on the Gills’ defamation claims arising out of the broadcast as a whole. C. Defamation During the News Gathering Process ABC also argues it is entitled to summary judgment on the Gills’ defamation claims arising out of fifty-six questions posed and statements made during the news gathering process. We agree. As ABC contends and as discussed above in relation to the broadcast statements, many of the fifty-six news gathering statements of which the Gills complain do not contain assertions of verifiable fact, see Appendix 2 (Statements 1-3, 8-10, 12-13, 16, 18, 21-23, 26, 28-29, 32-37, 40); and eight of the complained-of news gathering statements are not defamatory as a matter of law, see id. (Statements 4, 11, 24, 31, 38, 41, 51-52). Additionally, ABC either proved the substantial truth of eleven of the fifty-six news gathering statements, or the Gills failed to produce any summary judgment of their falsity. See id. (Statements 6, 19, 30, 42-44, 46, 53-56). For example, in News Gathering Statements 42, 43, and 46, Krulwich indicated the Gills gave themselves very large bonuses even in years in which Gill Savings performed poorly, and the substantial truth of this assertion is established by the summary judgment evidence. Peter Gill, for instance, received a $1 million bonus in 1986 when Gill Savings reported a $100 million dollar net loss. Similarly, in News Gathering Statements 53-55, Krulwich stated “the Gills would sometimes be the people to whom Gill Savings and Loan was lending to,” and the summary judgment evidence establishes Gill Savings approved a $5.8 million loan to Bee Caves Partners, Ltd. for the Bee Caves project two days after Richardson Gill submitted a loan application and before an appraisal was issued. And the general and limited partners of Bee Caves Partners, Ltd. were Jeanco, Inc. (a corporation wholly owned by Richardson Gill) and The Richard Gill Company (a wholly owned subsidiary of