Justice Devine announced the Court's judgment and delivered an opinion, in which Justice Guzman, Justice Lehrmann, and Justice Busby joined.
In this defamation case, we must determine whether the trial court properly denied a defendant's motion for directed verdict as to nine of thirteen allegedly defamatory statements. Under the Defamation Mitigation Act (DMA), a plaintiff "may maintain an action for defamation only if" the plaintiff makes a timely and sufficient statutory request for correction, clarification, or retraction from the defendant or if a defendant makes a correction, clarification, or retraction. See TEX. CIV. PRAC. & REM. CODE § 73.055(a). The defendant asserts the statute's "only if" language is mandatory, creating a precondition to suit for each allegedly defamatory statement. The plaintiff claims the DMA is only a notice statute not meant to foreclose a plaintiff's timely filed cause of action. Rather, if a defendant believes statutory notice is lacking, the defendant must timely object or invoke the statutory abatement process. See id. §§ 73.058(c),.062.
The court of appeals generally agreed with the defendant, concluding that a request is a necessary predicate to submit each alleged instance of defamation to the jury and that the consequence of a plaintiff's failure to make the required request is dismissal of the underlying defamation claim. 555 S.W.3d 321 (Tex. App.-Houston [1st Dist.] 2018). Because the court concluded that only four of thirteen statements submitted to the jury in a nonsegregated jury question met the DMA's requirements, the court of appeals reversed and remanded for a new trial with respect to only those four defamation claims. We conclude, however, that the DMA prescribes the abatement of claims and loss of exemplary damages, rather than dismissal, and empowers the defendant to seek that relief. Because the DMA provides for abatement, not dismissal, and that remedy was available to the defendant when the plaintiff amended his complaint to add the nine disputed statements, the trial court did not err in denying the defendant's motion for directed verdict as to those claims. We accordingly reverse the court of appeals' judgment and remand the case to that court to consider unaddressed issues.
Plaintiff David Hogan is an executive pastor at a Houston church. In 2011, he divorced his wife, defendant Stephanie Zoanni, who was awarded primary custody of their child. After the divorce, Zoanni published a litany of statements online, to the police, and to Hogan's church leadership stating he is a pedophile, pervert, and patron of child pornography. In a letter to Zoanni dated March 7, 2014, Hogan demanded that Zoanni "cease and desist all defamation of David Hogan's character and reputation." It additionally included statements of Zoanni's "lies, insinuations, and innuendos about [Hogan]'s character and mistreatment of women." The letter specifically referenced a February 5, 2014 email Zoanni sent to the General Secretary
After sending the letter, Hogan sued Zoanni, alleging causes of action for defamation, invasion of privacy, malicious prosecution, abuse of the child protective services process, and intentional infliction of emotional distress. The petition, filed on March 27, 2014, included references to the statements Hogan had made in his earlier letter and sought both actual and exemplary damages.
On April 15, 2016—ten days before trial —Hogan filed his seventh amended petition, which represented the claims that the jury ultimately considered. The amended petition retained only the defamation claims and added nine newly discovered defamatory statements not included in the prior petitions. The amended pleading invoked the relation-back doctrine for each new statement. See TEX. CIV. PRAC. & REM. CODE § 16.068. According to Hogan, because the nine added statements related to the same subject matter as the previously alleged defamatory statements, the statute of limitations did not defeat them. Zoanni never pled a limitations defense to the nine new statements. However, on the first day of trial, Zoanni filed a motion for directed verdict as to the newly added statements and declined the trial court's offer of an abatement. Zoanni argued that as to the new statements, Hogan failed to comply with the DMA's requirements, which obligate a plaintiff to provide a defendant with a timely and sufficient request for correction, clarification, or retraction of each allegedly defamatory statement. Implicit in Zoanni's motion was the notion that a request must be made within the statute of limitations to be "timely." Because the newly proffered statements were made more than a year earlier, Zoanni contended it was no longer possible for Hogan to make a request that complied with the DMA's timeliness requirements as to those statements; hence, the new statements could not be included at trial. The trial court denied the motion for directed verdict and included all thirteen statements in the jury charge. The jury returned a verdict for Hogan totaling $2.1 million in actual damages.
A divided court of appeals reversed and remanded for a new trial on the original four statements alone, holding that Hogan could not recover damages for the nine new statements. 555 S.W.3d at 323-24. The court focused on the DMA's language that "[a] person may maintain an action for defamation only if ... the person has made a timely and sufficient request for correction, clarification, or retraction from the defendant." Id. at 325 (emphasis omitted) (quoting TEX. CIV. PRAC. & REM. CODE § 73.055(a)(1)). In construing the language of the DMA's notice provision, the court of appeals concluded that Hogan could no longer make a timely request for the nine added statements, that he thus could not "maintain an action for defamation" based on those statements, and that they should not have been submitted to the jury over objection. Id. at 327. And while the DMA provides for abatement and an opportunity to cure when a plaintiff fails to provide a timely and sufficient request, the appellate court reasoned that abatement was no longer available under the statute's terms or capable of providing a cure for the untimely request. Id. at 327-28. Under these circumstances, the court concluded that dismissal of the nine added claims was the appropriate consequence for Hogan's failure to make a timely and sufficient request. Id. at 328.
A dissenting justice reasoned that abatement and loss of exemplary damages are the only remedies available for noncompliance with the DMA. Id. at 336, 338 (Jennings, J., dissenting) (citing TEX. CIV. PRAC.
II. The Defamation Mitigation Act
The DMA "provide[s] 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 § 73.052. Rather than replace the common-law elements of a defamation claim, the statute prescribes a mechanism for plaintiffs to bring attention to defamatory publications to enable defendants, if they so choose, to take corrective action and thereby mitigate injury stemming from that publication. See Warner Bros. Ent., Inc. v. Jones, 611 S.W.3d 1, 10 (Tex. 2020) (citing TEX. CIV. PRAC. & REM. CODE § 73.055(a)) ("[The DMA uses] sticks and carrots to induce plaintiffs and defendants to take prompt action to rectify defamatory publications so any ensuing damages are ameliorated."). Alternatively, a defendant may proactively change potentially defamatory statements to mitigate damages and limit liability arising from those statements. Id.; TEX. CIV. PRAC. & REM. CODE §§ 73.055(a)(2), .059. Either avenue— a plaintiff's request or a defendant's change—will provide the defendant with the requisite notice for a plaintiff to maintain an action for defamation. TEX. CIV. PRAC. & REM. CODE § 73.055(a); see Warner Bros. Ent., Inc., 611 S.W.3d at 10.
Zoanni contended in her motion to dismiss before the trial court that Hogan's defamation claims for the nine new statements did not comply with the DMA because Hogan neither made a request for a correction, clarification, or retraction from Zoanni nor relied on a change made by her to those statements. A plaintiff makes a compliant request if that request is "timely" and "sufficient." TEX. CIV. PRAC. & REM. CODE § 73.055(a)(1). A request "is timely if made during the period of limitation for commencement of an action for defamation." Id. § 73.055(b). A request is sufficient if it
Id. § 73.055(d). A defendant may challenge whether it received an appropriate request in two ways: (1) within sixty days of service of citation "in a motion to declare the request insufficient or untimely," id. § 73.058(c); or (2) within thirty days of filing an original answer by filing a plea in abatement, id. § 73.062(a). Unless the plaintiff files a controverting affidavit, the suit "automatically abate[s]" eleven days after the plea is filed "without the order of the court" if that plea "is verified and alleges" the defendant "did not receive the written request required by Section 73.055." Id. § 73.062(b). The suit remains abated for sixty days after the plaintiff
In addition to the abatement remedy, the DMA also explicitly limits recoverable damages. First, under specified circumstances, the DMA forecloses an award of exemplary damages. Id. §§ 73.055(c),.056(b), .059. Second, with or without a request or change, defendants can introduce evidence in mitigation of damages in accordance with Section 73.003. Id. §§ 73.003(a)(3), .061(b). And third, with or without a change or request, actual damages remain subject to the general requirement that plaintiffs mitigate their damages to the extent reasonably possible. See id. § 73.003(a)(1).
Neither party argues that Hogan made a request with respect to the nine new statements within a year of their publication. Rather, Hogan asserts that either the nine statements relate back to the original four of a similar nature—the three for which he provided a request and the one Zoanni changed on her own accord—or dismissal is not a remedy the statute provides. According to Hogan, outright dismissal would defeat the statute's expressly stated purpose of providing plaintiffs a method to mitigate perceived damage or injury. See id. § 73.052. While the DMA encourages a plaintiff to make a prompt request, see id. § 73.055(c), it does not shield the defendant from all liability when a plaintiff merely fails to make that request or makes a request that is defective in some respect. Holding otherwise would deprive injured plaintiffs of any remedy at all and, worse, would allow defamatory publications to remain uncorrected in perpetuity. Such a consequence is antithetical to the statute's stated purpose and collaborative scheme.
In response, Zoanni asserts that the DMA's "only if" provision creates a mandatory condition. See id. § 73.055(a). If a plaintiff fails to make a timely request— that is, fails to make a request "during the period of limitation for commencement of an action for defamation"—then the suit must be dismissed because a request made after limitations has expired can never be "timely." Id. § 73.055(b); see id. § 16.002(a) ("A person must bring a suit for malicious prosecution, libel, slander, or breach of promise of marriage not later than one year after the day the cause of action accrues."). Implicit in Zoanni's argument is that a request will always be untimely if made more than a year after publication even if the defamation suit is filed within the limitations period. Furthermore, Zoanni argues that even assuming a timely request could be made more than a year after publication, she was not required to timely object or timely invoke the abatement process because the statutory deadlines for doing so had already expired when the new defamation claims were added. See id. §§ 73.058(c), .062(a). Specifically, she contends that the deadline to have a request declared untimely or insufficient expired sixty days after Hogan's service of citation. See id. § 73.058(c). Additionally, because a plea in abatement that challenges compliance with Section 73.055 must be filed within thirty days after the defendant files an original answer, Zoanni could no longer file a plea in abatement because she filed her original answer when the suit began years earlier. Assuming without deciding that Hogan's nine new statements do not relate back to his original request, as Zoanni asserts, we address whether the DMA mandates dismissal.
Whether the DMA requires dismissal of Hogan's defamation claims as to
Under the DMA, a plaintiff "may maintain an action for defamation only if: (1) [the plaintiff] has made a timely and sufficient request for a correction, clarification, or retraction from the defendant; or (2) the defendant has made a correction, clarification, or retraction." TEX. CIV. PRAC. & REM. CODE § 73.055(a) (emphasis added). It is undisputed that Zoanni did not make a "change" within the meaning of Section 73.055(a)(2) as to the nine newly discovered statements. See Warner Bros. Ent., Inc., 611 S.W.3d at 13-14 (holding defendant's revisions to a publication were a "change" within the meaning of Section 73.055(a)(2)). Zoanni asserts that the opposite of "maintain" is dismiss, but this understanding contravenes both the commonly understood and contextual meaning of that term.
The Legislature left the term "maintain" undefined. When a term is left undefined in a statute, "we will use the plain and ordinary meaning of the term and interpret it within the context of the statute." EBS Sols., Inc. v. Hegar, 601 S.W.3d 744, 758 (Tex. 2020) (citing TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441 (Tex. 2011)). The dictionary defines maintain to mean "to keep in an existing state" or "to continue or preserve in." Maintain, MERRIAM-WEBSTER'S NEW COLLEGIATE DICTIONARY (8th ed. 1977); see Maintain, BLACK'S LAW DICTIONARY (11th ed. 2019) ("[T]o continue (something)."). And it is the ongoing suit that cannot continue if notice was not provided. See TEX. CIV. PRAC. & REM. CODE § 73.055. That is, a plaintiff's lawsuit can continue if a timely and sufficient request for correction, clarification, or retraction has been provided. But that does not mean that failure to provide a request subjects the suit to automatic dismissal. See AC Ints., L.P., 543 S.W.3d at 709-10 (citing State v. $435,000, 842 S.W.2d 642, 644 (Tex. 1992) (per curiam)) (holding that a petition was not subject to automatic dismissal for failure to timely serve); Hines, 843 S.W.2d at 469 (holding that filing an action under the DTPA without adequate pre-suit notice results in abatement rather than dismissal). Instead, the statute's terms determine the appropriate consequence for failure to comply with a notice requirement. See
When the Legislature intends dismissal as the consequence for noncompliance, it clearly says so in the statute. For example, under the Texas Medical Liability Act, "a claimant shall ... serve on the [defendant] or the [defendant's] attorney one or more expert reports." TEX. CIV. PRAC. & REM. CODE § 74.351(a). If "an expert report has not been served ... the court, on the motion of the affected physician or health care provider, shall ... dismiss the claim," subject to certain exceptions. Id. § 74.351(b)(2), (c) (emphasis added). For suits against certain licensed or registered professionals, the claimant "shall be required to file with the complaint an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor who" meets certain qualifications. Id. § 150.002(a). "A claimant's failure to file the affidavit ... shall result in dismissal of the complaint against the defendant." Id. § 150.002(e) (emphasis added). And in asbestos-or silica-related suits, a claimant must serve a report on each defendant with a host of information. Id. §§ 90.003-.004. If a defendant timely files a motion to dismiss asserting the plaintiff failed to serve the necessary report, and the court is of the opinion that the motion to dismiss is meritorious, "the court shall ... grant the motion and dismiss all of the claimant's asbestos-related claims or silica-related claims." Id. § 90.007(a), (c) (emphases added). Here though, the statute says nothing of dismissal. And when a statute is silent on a subject, we presume the Legislature purposefully excluded that language. Cameron, 618 S.W.2d at 540.
The DMA's express abatement process for addressing challenges to the required request confirms this presumption. If a defendant elects to challenge the receipt of "a written request for a correction, clarification, or retraction, as required by Section 73.055, [the defendant] may file a plea in abatement." TEX. CIV. PRAC. & REM. CODE § 73.062(a). In other words, compliance is challenged at the defendant's election by a plea in abatement. See id. And while Zoanni contends that a plea in abatement would have been meaningless because more than a year had passed since publication of the underlying defamatory statements, that argument is inconsistent with the language of the abatement provision, which contemplates the possibility of notice beyond the limitations period. See id. § 73.062(a)-(c).
Under the abatement provision's terms, a defendant may file a plea in abatement if it "[did] not receive a written request for a correction, clarification, or retraction, as required by Section 73.055." Id. § 73.062(a). Section 73.055 requires that the request be "timely" and "sufficient," while the abatement provision broadly states that a person who does not receive a compliant request may file a plea in abatement. Abatement is thus a vehicle for the defendant to challenge whether (1) the defendant has received a compliant request, (2) the defendant has received a timely, but insufficient request,
In concluding that dismissal was a statutorily allotted consequence, the court of appeals failed to recognize that all roads under the DMA lead to a loss of exemplary damages rather than dismissal.
In reaching its conclusion, the court of appeals failed to recognize that the limitations clock and exemplary-damages clock are triggered by two separate
In concluding that a plaintiff's right to exemplary damages necessarily expires with or prior to the limitations period, the court of appeals failed to give effect to Section 73.055(c)'s focus on knowledge. While a plaintiff's ability to seek exemplary damages very well may end before the limitations period, it could also extend beyond the limitations period depending on when the plaintiff learned of the publication and what the defendant can prove about that matter. Thus, under the terms of the statute, the Legislature contemplated that a plaintiff could provide a sufficient request beyond the limitations period, but it only prescribed a loss of exemplary damages, depending on what a defendant may prove, not dismissal.
Knowledge can be difficult to prove, though. See Rogers v. Ricane Enters., Inc., 930 S.W.2d 157, 174 (Tex. App.-Amarillo 1996, writ denied). And the DMA affords defendants some assistance in the matter. For example, Section 73.058(c) allows a defendant to file a motion to declare a request either insufficient or untimely within sixty days of service of citation. TEX. CIV. PRAC. & REM. CODE § 73.058(c). A declaration that a plaintiff provided a noncompliant request serves the dual purposes of establishing a date the plaintiff had knowledge of the publication and informing the plaintiff that it has yet to provide a request to possibly preserve exemplary damages.
Although a defendant's proactive change to an allegedly defamatory publication can bar exemplary damages absent actual malice, id. § 73.059, receipt of a request provides defendants additional avenues to bar exemplary damages. Within thirty days of a request, a defendant can either sufficiently change the publication or force the plaintiff to produce evidence of falsity. Id. §§ 73.056, .057(a)(1), .059. If a defendant chooses to request evidence of falsity, the defendant may then respond to the evidence by making a change to bar exemplary damages. Id. §§ 73.057(a)(2), .059. If a plaintiff fails to provide evidence within thirty days, the plaintiff loses its right to exemplary damages absent good cause or proof of actual malice. Id. § 73.056(b). This intentional system of carrots and sticks encourages plaintiffs and defendants to collaborate to mitigate reputational harm by putting the availability of exemplary
Additionally, the court of appeals' rationale that the exemplary-damages and limitations clocks simultaneously expire fails to acknowledge other relevant provisions. The court reasoned that it would be nonsensical for a plaintiff only to lose exemplary damages even when the plaintiff possessed knowledge of that publication for more than ninety days or beyond the limitations period. 555 S.W.3d at 329. Although exemplary damages are the DMA's primary carrot and stick, defendants can also put on evidence of all material facts and circumstances that contribute to the plaintiff's claim for actual damages and any public apology, correction, or retraction of the libelous matter made and published by the defendant. Id. §§ 73.003(a)(1), (3),.061(b). As material circumstances bearing on the extent and source of the plaintiff's actual damages, a defendant can rely on evidence of a plaintiff's failure to provide a timely or sufficient request, failure to respond to a court's declaration that a provided request was noncompliant, or delay in providing a request. See id. § 73.003(a)(1).
In concluding that the DMA affords a defendant the right to dismissal for a plaintiff's failure to provide a request within the limitations period, the court of appeals neutered the statute's intentional scheme, which facilitates the exchange of information with the goal of obtaining a change to the underlying defamatory statement—the true source of the plaintiff's damages. Id. § 73.052; see also id. § 73.051 (calling for a liberal construction to effectuate the DMA's purpose). Implying a right to dismissal for failure to provide notice before limitations has expired is not apparent from the statute's text and serves only to undermine the statute's expressly stated purpose of mitigating damages by providing an opportunity for the correction, clarification, or retraction of a defamatory statement. Id. § 73.052; see Mauzy v. Legislative Redistricting Bd., 471 S.W.2d 570, 573 (Tex. 1971).
Today the Court does not reach a consensus on the main issue presented— whether the DMA requires dismissal of certain claims in a timely filed lawsuit for which the defendant has not received a sufficient request before limitations has expired. But that is only because the concurrence and dissent fail to give effect to the language the Legislature actually enacted. Contrary to the dissent's construction of the statute as precluding continuation of a suit when a request is untimely, Section 73.058(c) explicitly states a defendant must timely object to a request that is itself untimely. TEX. CIV. PRAC. & REM. CODE § 73.058(c). In doing so, the DMA expressly contemplates that absent such objection, a suit can indeed be "maintained" under the statute even though the request comes after limitations has expired. More significantly, even if a timely objection is made, Section 73.058(c) provides a remedy that—notably—is not dismissal. Id.
Under Section 73.058(c), if a defendant elects to challenge the request, it may file a "motion to declare the request insufficient or untimely." Id. If a court agrees, then a defendant will receive a "declar[ation]" to that effect. Id. The DMA, however, does not state that the defendant
Similarly, the concurrence engrafts a dismissal remedy by stating that an action can be maintained only if a request is made within the limitations period, post at ___, and that a defendant is entitled to dismissal if it timely objects to receipt of a timely request, post at ___. The concurrence confuses what is sufficient with what is necessary. Section 73.055(b) states that a request "is timely if made during the period of limitation for commencement of an action for defamation." TEX. CIV. PRAC. & REM. CODE § 73.055(b). That is, for timeliness purposes under the DMA, it is sufficient that a plaintiff provides a compliant request within the limitations period to "maintain" the suit. But because a written request that is either not served within the limitations period or insufficient in some other respect triggers the DMA's abatement provision after suit is filed, a written request provided in response to a plea in abatement is also statutorily compliant such that the plaintiff may "maintain" the suit.
Moreover, the concurrence interlineates a remedy that is neither stated nor contemplated by Section 73.058(c)'s objection provision—dismissal—despite the statute's express statement that a timely objection to a noncompliant request only entitles a defendant to a declaration. Id. § 73.058(c). This approach fails to acknowledge Section 73.058(c)'s function. A "declar[ation]" under this section forces a plaintiff to act, if it can, to preserve the possibility of exemplary damages. Id. § 73.055(c) (loss of exemplary damages for failure to make a request within ninety days of obtaining knowledge of the defamatory statement). It also forces the plaintiff to take additional measures that can be considered in determining whether and to what extent a
In drawing inferences about the Legislature's supposed intent, both the concurrence and the dissent fail to construe the phrase "maintain ... only if" within the statute's context. It is not our role to speculate on the Legislature's purpose, but instead to give meaning to every word in a statute, harmonizing each provision. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003) ("[W]e will not give an undefined statutory term a meaning that is out of harmony or inconsistent with other provisions in the statute."); State v. Standard Oil Co., 130 Tex. 313, 107 S.W.2d 550, 559 (1937) ("We are to interpret the language used in a manner to make all relevant laws  harmonious...."). When interpreting terms in a statute, that context necessarily includes the Legislature's codified purpose. ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 68 ("[W]ords are given meaning by their context, and context includes the purpose of the text."); see Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n, 518 S.W.3d 318, 354-55 (Tex. 2017) (Willett, J., dissenting) ("When legislators articulate an explicit purpose in the very words of the statute, the Court need not—and should not—speculate."). By inferring an unstated dismissal right under the DMA, the concurrence and the dissent ignore the Legislature's codified purpose: "to provide 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 § 73.052. An unwary victim is left without an opportunity to "mitigate any perceived damage or injury" or recourse to compel a tortfeasor to correct the public record. Id.
Zoanni lastly contends the statute's abatement process was not available to her with respect to the nine statements added in the seventh amended petition because the statutory deadline for invoking that process had already passed when the amended petition was filed. The defendant's right to file a plea in abatement extends to "the 30th day after the date the [defendant] files an original answer in the court in which the suit is pending." Id. § 73.062(a) (emphasis added). Zoanni argues that "original answer" refers only to the first answer in the case and that her right to seek an abatement under the statute accordingly ended thirty days after that first answer was filed. Ironically, Zoanni titled her response to the seventh amended petition, which challenged the nine additional defamation claims, as an original answer. But titles aside, she maintains that only the first original answer in the case triggers the DMA's deadline for invoking the abatement process.
Zoanni's position ignores our procedural rules and the DMA's language. Under the rules of procedure, a plaintiff may amend an original petition throughout the pretrial process. See TEX. R. CIV. P. 63. Each
Second and similarly, the abatement right is provided to "a person against whom a suit is pending." Id. A suit is not pending only when it originates or is filed; a lawsuit is pending throughout its duration until it is resolved. Pending, BLACK'S LAW DICTIONARY (11th ed. 2019) ("Remaining undecided; awaiting decision."). Zoanni's position suggests that it is the filing of a lawsuit that triggers the right to abatement, but it is instead the failure of a plaintiff to provide the "written request for a correction, clarification, or retraction as required by Section 73.055" for alleged defamatory statements that triggers the right to abatement. TEX. CIV. PRAC. & REM. CODE § 73.062(a); see also id. § 73.055(d)(3) (enumerating that a sufficient request must state with particularity the alleged defamatory statement). As a plaintiff amends his petition to include newly alleged defamatory statements, each of which is a separate claim for defamation, see Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 587 (Tex. App.-Austin 2007, pet. denied); Akin v. Santa Clara Land Co., 34 S.W.3d 334, 340-41 (Tex. App.-San Antonio 2000, pet. denied); Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 394-96 (Tex. App.-Houston [1st Dist.] 1993, writ dism'd w.o.j.); Fisher v. Beach, 671 S.W.2d 63, 67 (Tex. App.-Dallas 1984, no writ), those newly added claims can trigger the defendant's right to abatement if they are not in the subject of a sufficient request, the plaintiff has no proof they were in the subject of a prior sufficient request, and the defendant has made no change to the statements.
A majority of the Court agrees that Zoanni elected not to seek an abatement, which was available to her when Hogan filed his seventh amended petition. Post at ___ (Boyd, J., concurring). Rather, she sought dismissal, claiming Hogan had not provided a timely or sufficient request for the nine newly added claims. The right to seek an abatement is permissive, and a defendant may waive the right if not pursued. Although Zoanni had the right to seek abatement after Hogan filed his seventh amended petition adding the nine new claims, she elected not to pursue that remedy. Zoanni also rejected the trial court's subsequent offer to abate the suit for her to receive the statutory request. She accordingly has waived that remedy along with the opportunity to receive the statutory request.
The plain language and purpose of the DMA afford a defendant a time-limited right to a plea in abatement if a timely and sufficient request is not provided by the plaintiff. If a plaintiff fails to provide the necessary request and a defendant timely files a plea in abatement, the suit must abate until the plaintiff responds with a written request. TEX. CIV. PRAC. & REM. CODE § 73.062(c). The plain language of the statute does not support a right to dismissal
Justice Boyd filed a concurring opinion.
Chief Justice Hecht filed a dissenting opinion, in which Justice Blacklock and Justice Huddle joined.
Justice Bland did not participate in the decision.
Justice Boyd, concurring.
As we've noted before, it's "at least theoretically possible that legislators—like judges or anyone else—may make a mistake."
The DMA and the Uniform Model Act
To understand the problem we address in this case, it is helpful to begin with an understanding of the uniform model act on which the DMA is based.
The uniform model act on which the DMA is based is called the Uniform Correction
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).
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.
The Texas Legislature, however, chose to omit the UCCDA's provision that expressly allows the plaintiff's pleading to constitute a Request.
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.
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,
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):
To be timely, the Request must be "made during the period of limitations for commencement of an action for defamation."
The second crucial provision is section 73.058(c):
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":
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.
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."
B. Rendering other provisions meaningless
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."
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."
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."
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."
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."
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 defendant
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.
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.
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.
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.
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.
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.
Chief Justice Hecht, joined by Justice Blacklock and Justice Huddle, dissenting.
The Texas Defamation Mitigation Act (the Act)
The Court is evenly divided on the meaning of maintain only if. The concurrence agrees with my analysis that noncompliance requires dismissal.
What would undermine the Legislature's purpose would be to refuse to interpret the Act as written, as the plurality proposes to do. And while that would be a serious matter, it would be of limited consequence. After all, the Legislature can fix this Court's statutory misinterpretations if it chooses. The greater damage would be the stark departure from statutory-construction principles on which the Court has
As a general rule, "[t]he long-standing law of this state requires a claimant to mitigate damages if it can do so with `trifling expense or with reasonable exertions'."
Enter the Act. It was passed in 2013
The Act is modeled on the Uniform Correction or Clarification of Defamation Act,
The Texas Act applies broadly to any "claim for relief, however characterized, from damages arising out of harm to personal reputation caused by the false content of a publication" and to all "forms of transmitting information."
These requirements are strict and detailed, but compliance is not difficult. In the context of this case, for example, though using other names and details, it might take this simple form:
After a Request is received, the defendant has the option to ask the plaintiff "to provide reasonably available information regarding the falsity of the allegedly defamatory statement not later than the 30th day after the date the person receives the request."
As with a Request, the requirements for a sufficient Change are strict and detailed but also not hard to meet.
A defendant must raise a challenge to the timeliness or sufficiency of a Request by motion
The Act precludes a plaintiff's recovery of exemplary damages in three instances: if a Request is not made within 90 days of receiving knowledge of the publication;
Finally, a defendant in a pending suit who has not received a Request in compliance with the Act may, within 30 days of filing "an original answer", seek to abate the suit.
A divided court of appeals held that a plaintiff who does not make a Request
The plurality reasons that maintain means continue, so if a plaintiff has not made a timely Request, the action cannot continue, and the Act must "determine the appropriate consequence".
The plurality argues that maintain only if cannot mean what it says because the Act requires that "to challenge the sufficiency or timeliness of a [Request], the defendant must state the challenge in a motion to declare the request insufficient or untimely served not later than the 60th day after the date of service of the citation."
An abatement may give a plaintiff time to cure any insufficiency in his Request, but it cannot roll back the clock and make timely a Request that would have been untimely before the abatement started. Yet that is precisely the plurality's view: "The suit recommences generally sixty days after the plaintiff provides the written request in response to the plea in abatement."
The better reading of the abatement provision—and the only one that gives the Act's maintain only if language any effect —is that it gives some defendants who do not receive a Request before suit is filed a short-fuse mechanism to force a Request from the plaintiff and perhaps pursue settlement. Because the case must be dismissed if the plaintiff has not made a sufficient Request within the one-year limitations period, abatement will not be an option in every case. The plurality worries that if a plaintiff's noncompliance with the Act results in dismissal, then defendants will be encouraged to sit back and wait until limitations has run. Some surely will. But even if the plurality were correct and the Act as written is bad policy, the plurality cannot legislate the Act out of existence, which is what it would do.
* * * * *
As the plurality reads the Act, its provisions accomplish essentially nothing. Though compliance with the Act is not difficult, imposing any different or unusual statutory requirements on one type of common-law action can be unexpected and can easily have unintended consequences. That is especially true here, where, even though mitigation of damages is a very sensible and generally applicable rule, the common law has not succeeded in applying it in defamation actions as in other actions, and its source is now a special, recently enacted statute. The difficulties are that mitigation in defamation actions is usually within the defendant's sole control and the plaintiff can do little more than ask, protagonists have little natural inclination to work toward mitigation, and most people who believe themselves to have been spoken of falsely or accused of lying would rather litigate than mitigate. But how to meet these difficulties is the Legislature's choice, and it has made that choice in the Act. A defamation action may be maintained only if there has been compliance with its requirements. Maybe that choice was flawed. But whether the Legislature's choice was apt is not a judicial decision. The plurality would remove all concern that a claim it would consider deserving could be lost by judicially repealing the Act. We're not quite all textualists.
The Act states: "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; or (2) the defendant has made a correction, clarification, or retraction."
Accordingly, I respectfully dissent.
Zoanni did not dispute the application of the doctrine in her motion for directed verdict or any other time before the trial court. Neither did she challenge the doctrine's applicability to the court of appeals. Because Zoanni has therefore waived any challenge to the relation-back doctrine, I would assume without deciding that the doctrine applies. See Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 122 (Tex. 2004).
But other Texas courts have concluded that dismissal is not required when a plaintiff fails to comply with the Act. See Cunningham v. Waymire, 612 S.W.3d 47, 70 (Tex. App.-Houston [14th Dist.] 2019, no pet.); Cummins v. Lollar, No. 07-16-00337-CV, 2018 WL 2074636, at *8 (Tex. App.-Amarillo May 3, 2018, pet. denied) (mem. op.); Warner Bros. Ent., Inc. v. Jones, 538 S.W.3d 781, 812 (Tex. App.-Austin 2017), aff'd on other grounds, 611 S.W.3d 1 (Tex. 2020); Hardy v. Commc'n Workers of Am. Local 6215 AFL-CIO, 536 S.W.3d 38, 48 (Tex. App.-Dallas 2017, pet. denied); see also MediaOne, L.L.C. v. Henderson, 592 S.W.3d 933, 945-946 (Tex. App.-Tyler 2019, pet. denied) (acknowledging the court of appeals' split but declining to reach the issue).