LEMUEL DAVID HOGAN, PETITIONER, v. STEPHANIE MONTAGNE ZOANNI, RESPONDENT
No. 18-0944
IN THE SUPREME COURT OF TEXAS
June 4, 2021
JUSTICE BOYD, concurring.
As we‘ve noted before, it‘s “at least theoretically
I.
The DMA and the Uniform Model Act
To understand the
The uniform model act on which the DMA is based is called the Uniform Correction
efforts, however, the UCCDA has been a “colossal flop.”8 After nearly thirty years, only three states—Texas, North Dakota, and Washington—have enacted the UCCDA in any form.9
Like the UCCDA, all three state statutes (including the Texas DMA) provide that a plaintiff “may maintain an action for defamation only if” (1) the plaintiff has made a timely and sufficient (or “adequate“) request for correction or clarification from the defendant (a Request), or (2) without having received a Request, the defendant has voluntarily made a correction or clarification (a Correction).10 If a defendant “intends to challenge” the timeliness or sufficiency of a Request, the defendant must raise that challenge by filing a motion within sixty days after service of citation.11 If a defendant successfully challenges a Request‘s timeliness or sufficiency, the
plaintiff cannot “maintain an action for defamation.” The commission, courts in other states, and commentators have consistently agreed that if the plaintiff cannot
But “to avoid technical requirements that can often serve as traps for unwary plaintiffs,” the commission included a provision in the UCCDA that expressly allows a plaintiff‘s lawsuit to serve as the required Request.13 Because a Request is “timely if made within the period of limitation for commencement of an action for defamation,”14 a timely filed complaint (or petition, in Texas parlance) “will always serve as a timely request for correction or clarification.”15 And—at least, in the commission‘s view—normal pleading rules should apply and allow the plaintiff “to amend a complaint that fails to contain the information required” to make the Request sufficient.16 By allowing the plaintiff‘s original pleading to serve as a timely Request and then allowing the plaintiff to amend the pleading to add any information necessary to make the Request sufficient, the UCCDA allows a plaintiff who files suit before limitations expires but without first making a
Request to avoid dismissal, while still promoting “the Act‘s purpose of resolving or limiting defamation disputes prior to litigation.”17
The Texas Legislature, however, chose to omit the UCCDA‘s provision that expressly allows the plaintiff‘s pleading to constitute a Request.18 Instead, the legislature added a new provision—which neither the UCCDA nor any other state‘s law includes—that allows a defendant “who does not receive a written [R]equest for a correction, clarification, or retraction, as required by Section 73.055,” to “file a plea in abatement not later than the 30th day after the date the [defendant] files an original answer in the court in which the suit is pending.”19 Apparently inspired by a nearly
But the DMA‘s abatement provision says the defendant “may” file a plea in abatement; it does not require a defendant who has not received a written Request to seek abatement.21 And as
explained, a plaintiff who has failed to make a timely and sufficient Request cannot “maintain” the defamation action unless the defendant has voluntarily made a Correction without having received a Request.22 So the issue is: what are the rights of a defendant who has not voluntarily made a Correction when (1) the plaintiff files suit without having made any written Request or (2) the plaintiff files suit after making a written Request but the Request was insufficient or untimely? Is abatement the defendant‘s only remedy in both situations because section 73.062(a) says a defendant who did “not receive a written [R]equest as required by Section 73.055” may file a plea in abatement? Or can the defendant demand dismissal in both situations because section 73.055(a) says the plaintiff cannot “maintain” the action? Or does the outcome depend on which of the two circumstances occurs; that is, does it depend on whether the plaintiff made a written Request that was insufficient or untimely or the plaintiff failed to make any written Request at all?
Writing for the Court‘s plurality, JUSTICE DEVINE would hold that section 73.055(a)‘s statement that a plaintiff “may maintain an action for defamation only if” does not mean the action “must be dismissed unless.” Ante at ___. Instead, concluding that section 73.062(a)‘s abatement provision informs the meaning of section 73.055(a)‘s statement that the plaintiff cannot “maintain” the action, the plurality would hold that abatement is the only available remedy when a plaintiff files suit after serving a written Request that was insufficient or untimely or without having served any written Request at all. Ante at ___. Writing for the dissenting Justices, the CHIEF JUSTICE would hold that section 73.055(a)‘s “maintain . . . only if” language plainly means the claims “must be dismissed unless,” and thus requires the claims to be dismissed if the plaintiff made a written
Request that was insufficient or untimely or failed to make any written Request at all. Post at ___. To accommodate section 73.062(a)‘s abatement provision, the dissenting Justices would hold that the defendant can choose between abatement and dismissal if the plaintiff made a written Request that was insufficient but timely, but only if there‘s still time for the plaintiff to make a sufficient and timely Request. See post at ___. Both readings, however, neglect key rules that govern our construction of statutes. We must give undefined words their common, ordinary meaning,23 give meaning to the statute‘s use of different words in different provisions,24 and
II.
The DMA Provisions
We must, of course, allow the statute‘s words to dictate the statute‘s meaning. On the issue this case presents, three of the DMA‘s provisions are crucial. The first is section 73.055(a):
A person may maintain an action for defamation only if: (1) the person has made a timely and sufficient [R]equest ... from the defendant; or (2) the defendant has made a [C]orrection . . . .26
To be timely, the Request must be “made during the period of limitations for commencement of an action for defamation.”27 To be sufficient, the Request must be served on the defendant; must reasonably identify and be signed by the plaintiff (or the plaintiffs attorney or agent); must “state[] with particularity the statement alleged to be false and defamatory” and “the time and place of publication,” if known; must explain why the statement was defamatory; and—importantly—must be “made in writing.”28
The second crucial provision is section 73.058(c):
If a defendant intends to challenge the sufficiency or timeliness of a [R]equest..., the defendant must state the challenge in a motion to declare the [R]equest insufficient or untimely served not later than the 60th day after the date of service of the citation.29
Like section 73.055(a), this section expressly refers to the “sufficiency” and “timeliness” of a Request. It provides the procedure by which a defendant may challenge a Request as “insufficient or untimely,” while section 73.055(a) provides that the plaintiff “may maintain an action” only if the plaintiff has made a “timely and sufficient” Request.
The third crucial provision is the abatement provision, section 73.062(a). In contrast to sections 73.055(a) and 73.058(c), this section expressly addresses a “written [R]equest” and says nothing at all about whether the Request was “timely” or “sufficient“:
A person against whom a suit is pending who does not receive a written [R]equest . . ., as required by Section 73.055, 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. 30
Working through these provisions, we must first determine what section 73.055(a) means when it says a plaintiff may “maintain an action” only if the person made a timely and sufficient Request. Using the same language, section 73.058(c) says a defendant who intends to challenge “the sufficiency or timeliness” of a Request must file a motion to declare the Request “insufficient or untimely” within sixty days after service of citation. But section 73.062(a), the abatement provision, uses distinctly different language: it permits a defendant to file a plea in abatement if the defendant did not receive “a written [R]equest” and never says anything about the Request‘s timeliness or sufficiency. Both the Court‘s plurality and the dissenting Justices overlook this distinction and as a result, misconstrue the language and render other provisions meaningless.
A. “Maintain an action”
I agree with the dissenting Justices’ conclusion that the phrase “may maintain an action . . . only if” means “must be dismissed unless.” Because the DMA does not define the terms, we must apply their common, ordinary meaning unless the statutory context requires a different meaning.31
“To determine a statutory term‘s common, ordinary meaning, we typically look first to dictionary definitions and then consider the term‘s usage in other statutes, court decisions, and similar authorities.”32
The Court‘s plurality relies on dictionaries that define the word “maintain” to mean “to keep in an existing state” or “to continue or preserve in.”33 Based on these definitions, the plurality concludes that a legal action that is abated is not being “maintained.” But I don‘t find these definitions particularly helpful. A legal action that is abated may in one sense be in a different “existing state,” but it is still existing and continuing—it is still being “maintained“—as a legal action. Instead of construing the verb “maintain” in isolation, we must construe it in context by considering its object, “an action.” Addressing the phrase “maintain an action,” rather than the single word “maintain,” the phrase refers to the act of filing a suit or of continuing a suit previously filed. Contrary to the plurality‘s assertion that whenever “the Legislature intends dismissal as the consequence for noncompliance, it clearly says so in the statute,”34 Texas statutes consistently use the phrase “maintain an action” to address the plaintiff‘s ability to file a lawsuit or to continue one
that has been filed.35 And our own decisions have consistently
The Court‘s plurality conveniently ignores these statutes and opinions, which consistently
illustrate that, under the common, ordinary meaning, an action that cannot be “maintained” must be dismissed. The plurality provides no examples in which a statute or one of our decisions equates abatement with the inability to “maintain an action,” and I have found none. I agree with the dissenting Justices that, under common, ordinary usage, a legal action that cannot be “maintained” must be dismissed.
The dilemma this case presents arises from the legislature‘s replacement of the model act‘s provision allowing a lawsuit to serve as the required Request with section 73.062(a)‘s provision allowing a defendant who has not received “a written [R]equest” to file a plea in abatement. If the abatement provision and section 73.055(a)‘s statement that an action cannot be “maintained” both address the same circumstances, the abatement provision becomes essentially meaningless because a defendant will almost certainly choose dismissal over abatement. The Court‘s plurality resolves this dilemma by holding that “maintain an action only if” means “must be abated unless,” so that abatement is the statute‘s only remedy when a plaintiff files suit after making a written Request that was untimely or insufficient or without having made any written Request at all. But by reading the abatement provision as the only remedy for a plaintiff‘s failure to make a timely and sufficient Request, the plurality renders other DMA provisions meaningless.
As explained, the abatement provision states that a defendant “against whom a suit is pending who does not receive a written [R]equest . . ., as required by Section 73.055, 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.”37 If (as the Court‘s plurality concludes) this provision offers the only remedy when a plaintiff fails to make a timely and sufficient Request, then section 73.055(a) (which provides that a plaintiff can “maintain an action” only if the plaintiff makes a timely and sufficient Request) adds no meaning to the statute at all. If we deleted section 73.055(a) completely, the statute would still mean exactly what the Court‘s plurality says it means.
And section 73.058(c) (which requires a defendant who intends to challenge an untimely or insufficient Request to file a motion within sixty days after service of citation) is worse than meaningless—it conflicts with the abatement provision. Under the plurality‘s reading, a defendant who desires to challenge the sufficiency or timeliness of a Request must file a motion within sixty days after service of citation (under section 73.058(c)) and may file a plea in abatement within thirty days after filing its original answer (under section 73.062(a)). But if, as the plurality concludes, the defendant‘s only remedy is abatement, then section 73.062(a) controls and section 73.058(c) is inconsistent and rendered meaningless. The plurality makes no effort to explain when, under its construction, section 73.058(c) would ever apply.
And finally, the Court‘s plurality‘s construction renders the statute‘s timeliness requirement completely meaningless. A Request is timely only “if made during the period of limitation.”38 Obviously, if a plaintiff makes an untimely Request before filing suit, abatement would be inappropriate because the suit must be dismissed based on limitations. But if the plaintiff
makes an untimely Request after having timely filed suit, abatement would still be inappropriate because the plaintiff can never make a timely Request. To avoid this result, the Court‘s plurality suggests that section 73.062 somehow “contemplates the possibility” that a plaintiff can make a timely Request “beyond the limitations period,”39
C. Different language in different provisions
The fault in the plurality‘s approach is its failure to acknowledge that sections 73.055(a) and 73.058(c) use different language than section 73.062(a) and thus apply to different situations. Comparing these provisions and giving effect to their different language, I conclude section 73.062(a) provides for abatement only when the plaintiff files suit without having made any written Request at all, and only if the plaintiff can still make a timely and sufficient Request during an abatement period.
As mentioned, section 73.055(a) states that a plaintiff can “maintain an action for defamation only if” the plaintiff “has made a timely and sufficient [R]equest.”42 To state the obvious, this section requires the plaintiff to make a Request and requires that the Request be timely and sufficient. Using the same language, section 73.058(c) states that a defendant may challenge “the sufficiency or timeliness of a [R]equest” by filing a “motion to declare the [R]equest insufficient or untimely.”43 It does not state that the defendant may challenge “the plaintiff‘s failure to make a Request” by filing a “motion to declare that the plaintiff failed to make a Request.” Instead, it presumes that the plaintiff has made a Request but the defendant “intends to challenge” the Request as insufficient or untimely. Section 73.058(c) thus does not apply when the plaintiff has failed to make any Request at all. Instead, it applies only when the plaintiff has made a Request but the defendant believes the Request was insufficient or untimely. If the court agrees that the Request was insufficient or untimely, then under section 73.055(a), the plaintiff cannot “maintain [the] action” and it must be dismissed.
In clear contrast to sections 73.055(a) and 73.058(c), section 73.062(a) does not state that abatement is available when the plaintiff made an “untimely or insufficient” Request. Instead, it makes abatement available when the defendant does not “receive a written [R]equest . . . as required by Section 73.055.”44 As mentioned, to be “sufficient,” a Request must satisfy several
requirements, one of which is that it must be “made in writing.”45 Section 73.062 focuses only on that one sufficiency requirement, repeatedly referring to a “written” Request. A defendant “who does not receive a written [R]equest”
Nevertheless, the Court‘s plurality concludes that section 73.062 impliedly refers to a Request that is “timely and sufficient” because it refers to a “written [R]equest . . ., as required by Section 73.055.”49 Because section 73.055 requires a Request that is timely and sufficient, the plurality reads “as required by section 73.055” to mean a timely and sufficient Request. So the plurality construes section 73.062 to make abatement available not only when the defendant does not receive a “written [R]equest,” but also when the defendant receives a written Request but the written Request was untimely or otherwise insufficient. I find this construction flawed for two reasons.
First, as mentioned, section 73.055 requires both that the plaintiff make a Request and that the Request be timely and sufficient. And to be sufficient, the Request must be “made in writing.” So section 73.055 requires the plaintiff to make a “written [R]equest,” and that‘s the only requirement of section 73.055 to which section 73.062 refers. Section 73.062 makes no reference to timeliness or sufficiency. It does not refer to any sufficiency requirement other than that the Request be written, and it does not refer in any way to the requirement that the Request be timely. If, as the Court‘s plurality concludes, “as required by section 73.055” means “timely and sufficient,” section 73.062‘s use of the word “written” to describe the Request is completely meaningless because a Request must be written to be sufficient. It‘s like saying a defendant could seek abatement if the plaintiff failed to make “a written Request that is in writing.” To mean what the plurality says it means, section 73.062(a) should provide for abatement when the defendant does not receive “a timely and sufficient Request, as required by section 73.055.” Instead, it refers only to a “written [R]equest, . . . as required by section 73.055,” without making any reference at all to whether the Request was timely or sufficient. The plurality disregards this distinctly different language without explaining any basis for doing so.
And second, if the phrase “as required by section 73.055” means that abatement is available when the plaintiff makes a written Request but the written Request is untimely or otherwise insufficient, then section 73.062(c)—which provides that the abatement “continues until the 60th day after the date that the written [R]equest is served” on the defendant50—must also refer to a Request that is timely and sufficient. But that would mean that abatement continues until the
plaintiff makes a Request that is both sufficient and timely. And of course, if a plaintiff made an untimely Request, abating the case until the plaintiff makes a timely Request is useless, because the plaintiff could never make a timely Request. Unless we erroneously negate the timeliness requirement altogether,
Reading section 73.062(a)‘s language within the context of the distinctly different language of section 73.055(a) and 73.058(c), I conclude that if the plaintiff has made a written Request but the defendant believes the Request was insufficient or untimely, section 73.058(c) permits the defendant to challenge the Request in a motion to declare it insufficient or untimely. If the court “declares” that the Request was insufficient or untimely, then under section 73.055(a), the plaintiff cannot “maintain” the action and the court must dismiss it. Section 73.062(a), meanwhile, applies when the plaintiff has filed suit without having made any written Request at all. In that circumstance, instead of adopting the UCCDA‘s provision allowing the plaintiff‘s pleading to serve as a written Request, the legislature added section 73.062, permitting the defendant to seek abatement to require the plaintiff to make a written Request. But if limitations has expired or expires before the plaintiff makes a written Request in response to the defendant‘s abatement plea, abatement would be useless, and the court should dismiss the action under section 73.055(a) because the plaintiff can never make a timely Request.
D. Purpose
Finally, I‘m not convinced by the Court‘s plurality‘s assertion that its construction promotes the DMA‘s purpose of “providing plaintiffs a method to mitigate perceived damage or
injury” by obtaining a Correction and that “[h]olding otherwise” would be “antithetical” to that purpose.51 Like the dissenting JUSTICES, I adhere firmly to the principle that a statute‘s purpose cannot trump its language. See post at ___. And even if the DMA‘s purpose mattered, mitigation is meaningful only when it occurs as quickly after the wrongful conduct as possible. The UCCDA, in fact, “is intended to encourage early corrections or clarifications.”52 Requiring dismissal when a plaintiff fails to make a Request before limitations expires promotes that purpose. Construing the statute so that it does not require a timely Request at all does not.
III.
Hogan‘s Claims
Applying the statute to this case, I agree with the Court‘s plurality that section 73.062(a)‘s abatement provision applies to Hogan‘s claims. On March 7, 2014, Hogan sent a written Request to Zoanni, sufficiently identifying three allegedly defamatory statements.53 Twenty days later, on March 27, 2014, Hogan timely filed this suit against Zoanni, asserting defamation claims based on the statements identified in his Request. Hogan thus made a timely Request that was sufficient as to the three allegedly defamatory statements, as section 73.055(a) requires.
But two years later, on April 15, 2016, Hogan filed an amended petition alleging Zoanni also defamed Hogan through nine additional statements. Hogan never made any written Request that identified these nine statements. Ten days later, when the trial began on April 25, 2016, Zoanni
moved for a directed verdict on the claims based on the nine new statements, arguing
Under my reading of the DMA, the court of appeals erred because, as to the nine additional statements, Hogan never made any written Request at all. The written Request Hogan sent on March 7, 2014, was not merely insufficient as to the nine additional statements. If that were true, section 73.058(c) would have required Zoanni to file a motion challenging the Request‘s sufficiency within sixty days after she was served with citation. But of course, she could not have done that, because she could not have known that Hogan would later complain about and assert claims based on the nine additional statements, two years after filing suit and serving Zoanni with citation. Instead, although Hogan‘s March 2014 written Request was timely and sufficient as to the three original statements, Hogan never made any written Request at all regarding the nine new statements. Section 73.062(a) thus applies, because it applies when the plaintiff fails to make any
“written [R]equest” at all, and sections 73.055(a) and 73.058(c) do not apply, because they apply when the plaintiff makes a written Request that is untimely or otherwise insufficient.
Once Hogan amended his petition to assert claims based on the nine additional statements, section 73.062(a) permitted Zoanni to file a plea in abatement within thirty days after filing her “original answer.” Because I agree with the Court‘s plurality that the answer Zoanni filed in response to Hogan‘s new claims based on the nine new statements was her “original answer” as to those claims, see ante at ___, I agree that Zoanni could have timely sought abatement in response to Hogan‘s new claims. The only remaining question, then, is whether Hogan could still make a timely Request at that point. The statute of limitations had clearly expired by then, but as the Court‘s plurality notes, Hogan pleaded the relation-back doctrine in his seventh amended petition. Under that doctrine, limitations had not expired on Hogan‘s claims based on the nine additional statements, and Hogan could still make a timely Request regarding those statements.54 See ante at ___. So Zoanni could
proceeded to trial on all of the allegedly defamatory statements, Zoanni must now accept the judgment based on the jury‘s verdict unless some other basis exists for reversing that judgment. As the plurality explains, Zoanni raised additional bases, but the court of appeals did not reach or address them. I agree with the plurality‘s decision to remand the case to the court of appeals so that it may now consider those unaddressed issues. See ante at ___.
IV.
Conclusion
Just as the Uniform Law Commission included a section permitting plaintiffs to make a Request in their initial pleading and then cure any insufficiencies by amending those pleadings, the Texas Legislature apparently intended to eliminate “traps for unwary plaintiffs” by adding section 73.062‘s abatement provisions to the DMA.55 But if the legislature intended that abatement provide the defendant‘s sole remedy when a plaintiff fails to make a timely and sufficient Request, the legislature should not have included the UCCDA language stating that a plaintiff “may maintain an action only if” the plaintiff makes a timely and sufficient Request. Whether by mistake or not, section 73.062 allows abatement only when the plaintiff has failed to make a “written [R]equest,” as section 73.055 requires, and nothing in section 73.062 permits the plaintiff to make a Request that is untimely. This construction reflects the different language used in each of the relevant sections and gives meaning to them all.
I agree with the Court‘s plurality that the court of appeals erred in holding that section 73.055(a) requires that Hogan‘s claims based on the nine additional statements be dismissed. But
because I do not agree with its reasoning or with its construction of the DMA, I respectfully concur only in the judgment.
Jeffrey S. Boyd
Justice
Opinion delivered: June 4, 2021