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Click here for the full text of this decision FACTS:Texas Disposal Systems Landfill Inc. owns and operates a landfill in southeast Travis County (the Texas Disposal landfill) as well as four other landfills in Travis, Williamson, Comal and Bexar counties. Waste Management is one of Texas Disposal’s competitors in the waste removal and landfill services industry serving the Austin and San Antonio markets. In 1995, Texas Disposal and Waste Management competed against one another for a contract to provide waste removal and landfill services to the city of San Antonio. By May 1995, San Antonio and Texas Disposal had begun bona fide negotiations on a contract for Texas Disposal to assume operations of the city’s Starcrest Transfer Station, from which Texas Disposal would haul San Antonio’s waste to the Texas Disposal landfill, starting in February 1997. As of the end of January 1997, however, the parties had not yet executed a final contract. In November 1996, the city of Austin issued a request for proposals seeking bids from companies to provide waste removal and landfill services. Texas Disposal and Waste Management both submitted bids. On Jan. 30, 1997, before either the San Antonio or the Austin contract was finalized, Waste Management caused an Action Alert memo to be distributed to environmental and community leaders in Austin, including several members of the Austin City Council. The topic of the Action Alert was San Antonio’s proposal to contract with Texas Disposal to assume operations of the Starcrest Transfer Station. The memo warned readers about the increased traffic and environmental problems that would result, questioned the environmental integrity of the Texas Disposal landfill, and urged recipients of the memo to contact public officials in San Antonio and Austin, as well as the San Antonio Express-News, to inform them of “your concerns.” In October 1997, Texas Disposal filed suit against Waste Management for defamation, tortious interference with an existing or prospective contract, and business disparagement. In addition to compensatory and punitive damages, Texas Disposal sought injunctive relief against Waste Management. After Texas Disposal filed this initial suit, Waste Management in 1998 published a series of communications to city councils, agencies, environmental regulators and other parties. Waste Management denied each of the allegations and asserted, as affirmative defenses, that 1. The alleged statements were true and, thus, not defamatory; 2. The statements were privileged communications made by an interested party in petitioning the government about a matter of public concern; and 3. Portions of Texas Disposal’s claims were time-barred by the statute of limitations. Waste Management also filed special exceptions claiming that Texas Disposal had failed to plead sufficient facts to support each of its claims. The trial court granted Waste Management’s motion for partial summary judgment, holding that Texas Disposal’s claims based on the 1998 communications were new and distinct transactions that did not relate back and were, therefore, barred by the statute of limitations. Accordingly, on March 2, 2002, the court dismissed those claims with prejudice. Texas Disposal filed a third amended petition in May 2002, adding antitrust claims against Waste Management for its “attempt to monopolize” in violation of Texas Business & Commerce Code �15.05(b). On March 25, 2003, the trial court signed a “final, corrected order” on both Waste Management’s and Texas Disposal’s new summary judgment motions, granting summary judgment in favor of Waste Management on all but one claim. As a result of the court’s order, the only claim remaining for trial on the merits was Texas Disposal’s defamation claim related to the Action Alert memo, on which Texas Disposal was required to prove actual malice. Ultimately, the jury charge asked only whether the statements were false; whether there was clear and convincing evidence that Waste Management knew of the falsity or had serious doubts about the statements’ truth (i.e., whether Waste Management had published the statements with actual malice); whether Waste Management had acted with common law malice; and what amount of damages, both actual and exemplary, should be awarded. The jury found that the statements were false and that, by clear and convincing evidence, Waste Management knew of the falsity or had serious doubts about their truth. Thus, the jury entered an affirmative finding on actual malice. Nonetheless, the jury determined that Waste Management’s publication of the Action Alert caused zero actual damages to Texas Disposal. Further, the jury concluded that Waste Management had not acted with common law malice and, therefore, awarded no exemplary damages. In accordance with this verdict, on Aug. 5, 2003, the court entered a final, take-nothing judgment against Texas Disposal. Following an unsuccessful motion for new trial, Texas Disposal appealed. HOLDING:Affirmed in part, reversed and remanded in part. Regarding Texas Disposal’s defamation claims arising from the Action Alert memo, the court held that the jury’s finding of actual malice was supported by clear and convincing evidence and that the trial court erred in refusing to question and instruct the jury on the issues of defamation per se and presumed damages. The court reversed and remanded the trial court’s take-nothing judgment for a new trial on Texas Disposal’s defamation claims arising from the Action Alert memo. Regarding Texas Disposal’s claims arising from the 1998 communications, the court held that the trial court correctly concluded that the claims are barred by the statute of limitations. Regarding Texas Disposal’s claims for tortious interference and attempted monopolization, the court held that the trial court correctly granted summary judgment as to both claims, because Texas Disposal failed to put forth evidence of at least one essential element of each claim. The court affirmed the judgment in all other respects. OPINION:Law, C.J.; Law, C.J., and Smith and Pemberton, J.J.

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