627 S.W.3d 163
Tex.2021Background
- The Texas Defamation Mitigation Act (DMA) implements a UCCDA-based scheme: a plaintiff may "maintain an action for defamation only if" the plaintiff made a timely and sufficient written request for correction/clarification/retraction (Request), or the defendant voluntarily issued a correction.
- The UCCDA expressly allowed a plaintiff's initial pleading to serve as the Request; the Texas Legislature omitted that provision and instead added §73.062(a), letting a defendant who did not receive a written Request seek abatement by plea.
- Key statutory provisions: §73.055(a) (action only if timely & sufficient Request or Correction), §73.058(c) (motion to declare Request insufficient/untimely within 60 days), §73.062(a) (plea in abatement if defendant did not receive a written Request).
- Factual posture: Hogan sent a written Request on March 7, 2014 identifying three statements and filed suit March 27, 2014. Two years later he amended to add nine additional allegedly defamatory statements without sending new written Requests about them.
- Zoanni did not timely move to abate after the amended petition (she later sought dismissal/directed verdict at trial). Trial went forward; jury found liability. The court of appeals reversed as to the nine added statements; the Supreme Court remanded for further consideration of unaddressed issues. Justice Boyd concurred in the judgment but disagreed with the plurality’s statutory interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "may maintain an action only if" means dismissal is required for failure to satisfy Request requirements, or whether abatement is the sole remedy | Hogan: statute should be read to allow dismissal when Request is insufficient/untimely; abatement applies only when no written Request was made | Zoanni: DMA’s abatement provision is the exclusive remedy for failures, so claims should be abated rather than dismissed | Court (Boyd concur): "may maintain an action only if" imports dismissal when plaintiff made an untimely/insufficient Request; abatement applies only when no written Request was made at all |
| Whether §73.062(a) applies to insufficient/untimely written Requests or only to absence of any written Request | Hogan: §73.062(a) applies only when plaintiff made no written Request; insufficiency/timeliness issues are governed by §73.058(c) and lead to dismissal | Zoanni/plurality: §73.062(a) contemplates failures of timing/sufficiency as well, making abatement the remedy | Held (Boyd): §73.062(a) targets absence of a written Request; §73.058(c) and §73.055(a) control when a written Request is untimely or insufficient (which requires dismissal) |
| Procedural consequence when defendant receives no written Request after plaintiff amends to add new claims | Hogan: abatement available to allow plaintiff to serve a written Request if timely remains; defendant must timely seek abatement or waive it | Zoanni: could invoke dismissal or abatement as remedies | Held: Abatement was the applicable remedy for Hogan’s nine added statements (no written Request existed as to them), but Zoanni waived abatement by not timely invoking it and instead litigating the claims at trial |
| Interaction with statute-of-limitations and relation-back doctrine for newly pleaded statements | Hogan: relation-back can preserve limitations so an abatement period can still allow a timely Request | Zoanni: argued claims untimely so dismissal appropriate | Held: Because Hogan pleaded relation-back, limitations were not necessarily expired for the added statements, so abatement could have been effective; in any event Zoanni’s failure to seek abatement waived that remedy in this case |
Key Cases Cited
- Brown v. De La Cruz, 156 S.W.3d 560 (Tex. 2004) (apply common, ordinary meaning when terms are undefined)
- Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010) (courts cannot "fix" legislative mistakes)
- Tex. State Bd. of Exam’rs of Marriage & Fam. Therapists v. Tex. Med. Ass’n, 511 S.W.3d 28 (Tex. 2017) (use dictionary/ordinary meaning when statute silent)
- Ineos USA, LLC v. Elmgren, 505 S.W.3d 555 (Tex. 2016) (different statutory language in different provisions usually conveys different meanings)
- Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238 (Tex. 2008) (avoid constructions that render statutory provisions meaningless)
- Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718 (2017) (presumption that differences in statutory language convey differences in meaning)
- Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763 (Tex. 2020) ("maintain an action" interpreted as authority to sue)