OPINION
Appellants, Melodie McFarland and Pamela Lykes, challenge the jury verdict determining they published statements about appellee, Stacie Boisseau, that were defamatory per se. In three issues, appellants argue (1) most of the statements were not defamatory per se and should not havе been submitted to the jury; (2) the trial court erred by instructing the jury that proof of damages was not required for the statements that were not defamatory per se; and (8) the trial court erred by denying their motion for new trial after disregarding certain answers by the jury that formed some part of the basis for the jury’s award of damages.
We reverse and remand for further proceedings.
Background
Bоisseau had been the primary caregiver for her elderly and ailing mother before her mother passed away. After her mother passed away, Boisseau’s sisters, McFarland and Lykes, began making accusatory statements about Boisseau and her care of their mother. These statements implicated thаt Boisseau had not properly cared for and had murdered their mother.
Boisseau brought suit, asserting a claim of defamation per se against her sisters. 1 Ultimately, Boisseau identified 10 statements that she asserted were defamatory per se. The parties went to trial on these 10 statements.
After the parties had presented their evidence, the trial court held a charge conference. The first question in the jury charge characterized all 10 statements that Boisseau claimed the defendants published as defamation per se. The question listed each of the statements and asked the jury to determine which оf the statements, if any, each of the defendants had published. McFarland and Lykes argued that nine of the 10 statements were not defamation per se. Because Boisseau had only asserted a claim for defamation per se, and not a claim for defamation per quod, McFarland and Lykes argued thе statements had to be excluded entirely. The trial court overruled these objections and kept all 10 statements in the charge. The jury subsequently found that McFarland and Lykes had published eight of the 10 statements.
The second Question concerned whether any of the statements were privileged. The jury found that none оf the statements were privileged.
The third question asked the jury to determine Boisseau’s damages. The question was not subdivided per each statement. Instead, the question was subdivided by injury to reputation sustained in the past and mental anguish sustained in the past. No objections were raised for this question. The jury valued Boisseau’s past injury to her reputation at $5,500 and her past mental anguish at $50,000. In a sub *451 sequent question, the jury assessed punitive damages against McFarland at $8,000.
After the trial, McFarland and Lykes filed a motion to disregard the jury’s findings on the same nine statements it had objected to during the charge conference. McFarland and Lykes argued in thе motion that the nine statements should be disregarded either because they were not defamatory per se or because there was no evidence that the statements were ever published. In its ruling on the motion, the trial court agreed that five of the statements were not defamatory per se and that there was no evidence that two of the statements were ever published. Of the three remaining statements, the jury had already determined that no one had ever published one of them. As a result, of the 10 statements submitted to the jury (and of the eight statements the jury found to be published), only two statements remained.
McFarland and Lykes. subsequently filed a motion for new trial, arguing they were entitled to a new trial because the jury’s determination of damages, which was based on eight statements characterized as defamation per se, no longer reflected the modified jury charge question on liability, which only identifies two statements that аre defamatory per se that were published. The trial court denied their motion. McFarland and Lykes appealed.
Defamation Per Se
In their first issue, McFarland and Lykes argue that five of the 10 statements were not defamation per se and should not have been submitted to the jury as such. We do not need to consider this issue becаuse the five statements McFarland and Lykes complain about are the five that the trial court has already determined were not defamation per se in its order on McFarland and Lykes’s motion to disregard certain jury findings. In other words, the trial court has already granted McFarland and Lykes the relief they seek on this issue on appeal. Boisseau has not appealed this ruling. Further review is neither necessary nor allowed.
See One Call Sys., Inc. v. Houston Lighting & Power,
Similarly, McFarland and Lykes argue in their second issue that, because these same five statements were not defamatory per se, the instruction in the charge that “no independent proof of damage to the person’s reputation or of mental anguish is required” was erroneous as it applied to those five statements. In granting their motion to disregard certain jury findings, the trial court disregarded the jury’s findings of liability on the five statements McFarland and Lykes are now complaining abоut. McFarland and Lykes fail to explain how they have been harmed by an erroneous instruction on bases for liability that were subsequently disregarded.
We overrule McFarland and Lykes’s first and second issues.
Damages
In their third issue, McFarland and Lykes argue the trial court erred by denying them a new trial after it had disregarded most of the bases for liability in the charge on which the jury’s award of damages in the charge was based. While McFarland and Lykes frame this as error in the denial of their motion for new trial, the thrust of their argument concerns whether there was any harm in the jury’s award of damages when the jury considered bases for liability that were later struck by the trial court. This matter concerns, then, whether there was error in
*452
the jury charge.
See Romero v. KPH Consolidation, Inc.,
A. Standard of Review
We review a challenge to the trial court’s jury charge under an abuse of discretion standard.
Tex. Dep’t of Human Servs. v. E.B.,
If we determine that the jury charge was erroneous, we must then consider whether the error requires reversal.
See Transcon. Ins. Co. v. Crump,
B. Analysis
The first question in the jury charge characterized all 10 statements that Boisseau claimed the defendants published as defamation per se. The question listed each of the statements and asked the jury to determine which of the statements, if any, each of the defendants had published. During the jury charge conference, McFarland and Lykes argued that nine of the 10 statements were not defamation per se and, accordingly, should not be included in the charge. The trial cоurt overruled these objections and kept all 10 statements in the charge. The jury found that McFarland and Lykes had published eight of the 10 statements.
The second question concerned whether any of the statements were privileged. The jury found that none of the statements were privileged.
The third question asked the jury to determine Boisseau’s damages. The question was not subdivided by each statement. Instead, the question was subdivided by injury to reputation sustained in the past and mental anguish sustained in the past. No objections were raised for this question. The jury valued Boisseau’s past injury to her reputation at $5,500 and her past mental anguish at $50,000.
After the trial, McFarland and Lykes filed a motion to disregard the jury’s findings on the same nine statements it had objected to during the charge conference. McFarland and Lykes argued in the motion that the nine statements should be disregarded either because they were not defamatory per se or because there was no *453 evidence that the statements were ever published. In its ruling on the motion, the trial court agreed that five of the statements were not defamatory per se and that there was no evidence that two of the statements were ever published. Of the three remaining statements, the jury had already determined that nо one had ever published one of them. As a result, of the 10 statements submitted to the jury (and of the eight statements the jury found to be published), only two statements remained.
McFarland and Lykes subsequently filed a motion for new trial, arguing they were entitled to a new trial because the jury’s determination of damages, which was based оn eight statements characterized as defamation per se, no longer reflected the modified jury charge question on liability, which only identifies two statements that are defamatory per se that were published. The trial court denied their motion. McFarland and Lykes raise this same issue on appeal.
In
Casteel,
the question on liability “instructed the jury on thirteen independent grounds for liability, the first five of which were taken from” sections of the DTPA that the plaintiff lacked standing to bring.
Similarly, in
Romero,
the jury found the defendants, including Columbia, liable under a claim of negligence in the first jury question.
On appeal, Columbia argued there was no evidence to supрort a claim for malicious credentialing and, accordingly, the apportionment was erroneous because the jury apportioned responsibility to Columbia both on negligence and malicious credentialing. See id. at 214-15. The Texas Supreme Court held that there was insufficient evidence to support thе plaintiffs claim for malicious credentialing. Id. at 224.
For the apportionment question, the court held that, because it was not possible to determine how the jury apportioned responsibility to Columbia, the error in the question was reversible because it effectively prevented Columbia from complaining оn appeal that the jury would have apportioned responsibility differently had Columbia not been found liable under a claim of malicious credentialing. Id. at 226 (citing Tex.R.App. P. 44.1(a)(2) (allowing for reversal of judgment when error complained of probably prevented appellant from properly prеsenting case to court of appeals)).
McFarland and Lykes argued to the trial court that the liability question improperly included statements that were not defamation per se and improperly instructed the jury that those statements were, in fact, defamation per se. The trial court initially disagreed but later agreed after the trial, disregarding those bases for liability. The trial court also found two of the statements lacked evidentiary support and disregarded those as well. It denied, however, McFarland and Lykes’s motion for new trial based on the claim that the *454 damages no longer reflected the remaining basеs for liability.
As in
Casteel
and
Romero,
the bases for liability in this case contained both valid and invalid — or unsupported — bases for liability.
See Casteel,
Boisseau argues that this issue has not been preserved for appeal because McFarland and Lykes did not object to the form of the damages question. A similar argument was raised in
Romero.
In
Romero,
Columbia objected to both the question on liability for malicious credentialing and the question on apportionment.
The court went on to hold in
Romero,
though, “We need not consider whether Columbia was required to object not only to the lack of evidence for the malicious credentialing claim but also to the form of the apportionment question that included the claim because it did both.”
Id.
It added a footnote to this sentence, citing to a Fifth Circuit case.
Id.
at 229 n. 55 (citing
Pan E. Exploration Co. v. Hufo Oils,
Two appellate courts have subsequently сonsidered the issue that the Texas Supreme Court left unanswered in
Romero:
the Fourteenth Court of Appeals in
Mo. Pac. R.R. Co. v. Limmer,
We adopt the holding of these courts. Accordingly, this issue has been preserved for appeal. Because McFarland and Lykes are prevented from complaining on appeal that the jury’s single determination was based on any of the invalid claims of defamation per se, error is presumed and a new trial must be granted. See Tex. R.App. P. 44.1(a)(2).
We sustain McFarland and Lykes’s third issue.
Conclusion
We reverse the judgment of the trial court and remand for further proceedings.
Notes
. Boisseau also sued a third sister, Barrie Boisseau, for making similar defamatory statements. No judgment was obtained against the third sister, and she is not a party to diis appeal. Accordingly, the third sister's involvement in the suit and in the underlying events is not relevant to this appeal.