Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 14th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-04027
Justices Lang, Fillmore, and Schenck
M. FILLMORE JUSTICE
Hardy sued Bonnie Mathias and Mathias's employer, the
Communication Workers of America Local 6215 (the CWA),
alleging she had been slandered by statements made by Mathias
that were reported by a local television station. Mathias and
the CWA both moved for summary judgment on the ground there
was no evidence Hardy requested a correction, clarification,
or retraction of Mathias's statements as required by the
Defamation Mitigation Act. See Tex. Civ. Prac. &
Rem. Code Ann. §§ 73.051-.062 (West Supp. 2016)
(the DMA). The trial court granted the no-evidence
motions for summary judgment and dismissed Hardy's claims
with prejudice. On appeal, Hardy asserts the trial court
erred by granting the no-evidence motions for summary
judgment because (1) Mathias and the CWA failed, within sixty
days of being served with citation, to notify Hardy that they
intended to use the DMA as a defense to liability; (2)
applying the DMA to bar Hardy's claims was inconsistent
with the legislative intent underlying the statute; and (3)
the DMA does not apply when the publisher of the statement
acts with malice.
to the DMA, a plaintiff may maintain a cause of action for
defamation only if she timely and sufficiently requested a
correction, clarification, or retraction of an allegedly
defamatory statement or if the defendant has made a
correction, clarification, or retraction. Id. §
73.055(a). The trial court determined that Hardy's
lawsuit could be dismissed through a no-evidence summary
judgment based on Hardy's failure to make a request that
complied with section 73.055. See Tex. R. Civ. P.
166a(i). Construing the DMA in its entirety, giving effect to
all of its provisions, and considering the purpose of the
statute, we conclude that dismissal of the plaintiff's
claim is not the consequence authorized by the DMA for a
plaintiff's failure to make the required request.
Accordingly, the trial court erred by granting the
no-evidence motions for summary judgment and dismissing
Hardy's claims. We reverse the trial court's judgment
and remand this case for further proceedings.
2014, Hardy and five other individuals were candidates in the
Democratic Party primary for the office of Dallas County
District Clerk. No candidate received over fifty percent of
the vote in the primary election on March 4, 2014. Hardy, who
received the most votes, and Felicia Pitre, the second-place
finisher, faced a run-off election on May 27, 2014.
the record is not clear as to when Hardy was first employed
by the CWA, her employment was terminated on February 17,
2014. On April 22, 2014, Mathias, the vice president of the
CWA, made statements that were published by a local
television station about an incident that occurred while
Hardy was employed by the CWA and about Hardy's job
responsibilities at the CWA. Pitre won the run-off election
by a large margin.
April 9, 2015, Hardy sued Mathias and the CWA, alleging she
was slandered by Mathias's statements and the statements
caused her to lose the run-off election. Hardy specifically
alleged that, after she read Mathias's comments and
"conferr[ed] with her after the interview, "
neither Mathias nor the CWA "made any attempt to retract
those false statements." Mathias and the CWA responded
to the petition with a general denial but did not seek to
abate the action.
February 25, 2016, Mathias and the CWA filed amended answers
and affirmative defenses. As relevant to this appeal, Mathias
and the CWA asserted as an affirmative defense that Hardy had
failed to comply with the DMA and "her claims should be
dismissed or in the alternative her claims for punitive
damages dismissed." Mathias and the CWA subsequently
filed motions for summary judgment on grounds there was no
evidence (1) Hardy "requested a retraction of the
statements made by Defendant Mathias as required by
§73.055 of the Civil Practice and Remedies Code. Such
request is a condition precedent to bringing this
action"; (2) Mathias's statements were untrue at the
time they were made; (3) Mathias acted with actual malice in
that she either knew the statements were false or acted with
reckless disregard of whether they were true; and (4)
Mathias's conduct in publishing the statements was a
proximate cause of any injury or damage to Hardy. Mathias and
the CWA set for hearing only their request for summary
judgment based on Hardy's "failure to meet the
requirements as set forth in the Civil Practice and Remedies
responded to the motions and argued Mathias and the CWA
failed to challenge the sufficiency or timeliness of a
request for a correction, clarification, or retraction within
sixty days of service of citation and, therefore, waived
their affirmative defense. See Tex. Civ. Prac. &
Rem. Code Ann. § 73.058(c). As summary judgment
evidence, Hardy relied on the proofs of service of citation
on Mathias and the CWA and on Mathias's and the CWA's
original and amended answers. The trial court granted
Mathias's and the CWA's no-evidence motions for
summary judgment and ordered that Hardy's claims were
dismissed with prejudice.
review a trial court's decision to grant summary judgment
de novo. Merriman v. XTO Energy, Inc., 407 S.W.3d
244, 248 (Tex. 2013). After an adequate time for discovery, a
party may move for summary judgment on the ground there is no
evidence of one or more essential elements of a claim or
defense on which an adverse party would have the burden of
proof at trial. Tex.R.Civ.P. 166a(i). To defeat the summary
judgment, the nonmovant must produce summary judgment
evidence that raises a genuine issue of material fact on each
of the challenged elements. Tex.R.Civ.P. 166a(i);
Merriman, 407 S.W.3d at 248. A movant, however, is
not entitled to prevail on a no-evidence motion for summary
judgment on a ground that is not an essential element of the
nonmovant's claim or on which the nonmovant does not have
the burden of proof. See Villarreal v. Wells Fargo
Brokerage Servs., LLC, 315 S.W.3d 109, 127 (Tex.
App.-Houston [1st Dist.] 2010, no pet.) ("Here, the only
element identified by the movants as entitling them to
summary judgment is not an element of the Chapas'
assisting-in-breach-of-fiduciary-duty claim, as pleaded.
Accordingly, summary judgment cannot be properly granted on
the movants' no-evidence summary judgment motion."
(internal footnotes omitted)).
was enacted by the Texas Legislature in 2013 for the purpose
of "provid[ing] a method for a person who has been
defamed by a publication or broadcast to mitigate any
perceived damage or injury." Tex. Civ. Prac. & Rem.
Code Ann. § 73.052. The DMA applies to "a claim for
relief, however characterized, for damages arising out of
harm to personal reputation caused by the false content of a
publication" and to all publications, including
writings, broadcasts, oral communications, electronic
transmissions, or other forms of transmitting information.
Id. § 73.054.
Section 73.055(a) of the DMA provides that:
(a) A person may maintain an action for defamation only if:
(1) the person has made a timely and sufficient request for a
correction, clarification, or retraction from the defendant;
(2) the defendant has made a correction, clarification, or
Id. § 73.055(a). A defendant in a suit to which
the DMA applies who does not receive a written request for
correction, clarification, or retraction "may file a
plea in abatement not later than the 30th day after the date
the person files an original answer in the court in which the
suit is pending." Id. § 73.062(a). The
suit is automatically abated, without a court order,
beginning on the ...