Abraham v. Greer
509 S.W.3d 609
Tex. App.2016Background
- Salem Abraham sued Daniel Greer and Fix the Facts Foundation d/b/a AgendaWise for libel after an online article falsely accused him of misconduct at a political event and a subsequent retraction included another false statement.
- Greer and AgendaWise moved to dismiss under Texas Civil Practice & Remedies Code Chapter 27; the trial court granted the motion after limited discovery and a hearing.
- The court of appeals initially addressed whether Abraham, an elected local school board member, had to prove actual malice; the Texas Supreme Court reversed that ruling and remanded remaining issues for consideration.
- On remand the court considered three principal questions: (1) whether the trial court’s failure to rule on Abraham’s motion to overrule privilege preserved error; (2) whether Greer/AgendaWise qualify as journalists/news media under Chapter 22; and (3) whether Chapters 22 and 27 together violate the Texas open courts provision or due process.
- The appellate court received supplemental briefing, reviewed the record (including deposition proceedings and the trial court’s findings), and affirmed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trial court’s failure to rule on motion to overrule privilege | Abraham argued the court failed to rule on his motion to overrule privilege and order Greer to fully testify, requiring reversal | Defendants relied on preservation rules and that no timely objection/motion for new trial was made | Not preserved; complaint waived for failure to timely object or move for new trial — issue overruled |
| Whether Greer/AgendaWise are "journalists" under Chapter 22 | Abraham argued they were not a "news medium" because they publish opinion/advocacy, not news | Defendants argued their internet publication disseminated information to the public and fit the statutory definition of news medium/journalist | Not preserved in part; on the merits, sufficient evidence supported that they disseminated information via a public medium, so court did not abuse discretion in treating them as within the statute |
| Constitutionality of Chapters 22 and 27 (open courts/due process) | Abraham argued the statutes create a "Catch-22": Chapter 27 stays discovery while Chapter 22 privileges journalists, effectively foreclosing access to evidence needed to prove malice | Defendants argued the statutes permit limited, court-ordered discovery under strict prerequisites (including §22.024) and do not totally foreclose claims; trial courts retain discretion to allow necessary discovery | Statutes do not unreasonably abridge open courts rights under these facts; limited discovery mechanisms and §22.024’s balancing factors preserve access — issue overruled |
Key Cases Cited
- Greer v. Abraham, 489 S.W.3d 440 (Tex. 2016) (state supreme court remand on actual malice issue)
- Phillips v. Bramlett, 258 S.W.3d 158 (Tex. App. 2007) (preservation of complaint requires obtaining adverse ruling or timely objection)
- FDIC v. Lenk, 361 S.W.3d 602 (Tex. 2012) (appellate courts may not consider issues not preserved below)
- Kaufman v. Islamic Society of Arlington, 291 S.W.3d 130 (Tex. App.—Fort Worth 2009) (internet recognized as nontraditional electronic media)
- In re Living Ctrs. of Tex., Inc., 175 S.W.3d 253 (Tex. 2005) (abuse-of-discretion standard for evidentiary privilege rulings)
- In re Lipsky, 411 S.W.3d 530 (Tex. App.—Fort Worth 2014) (timing of hearings under Chapter 27 and trial-court scheduling flexibility)
- Tenet Hosp. Ltd. v. Rivera, 445 S.W.3d 698 (Tex. 2014) (open courts guarantee does not bar reasonable legislative limits on remedies)
- Stockton v. Offenbach, 336 S.W.3d 610 (Tex. 2011) (open courts challenges tied to due diligence and due process considerations)