Hardy v. Commc'n Workers of Am. Local 6215 AFL-CIO

• Decision Date: 31 March 2017
• Docket Number: No. 05-16-00829-CV,05-16-00829-CV
• Citation: 536 S.W.3d 38
• Parties: Tarsha HARDY, Appellant v. COMMUNICATION WORKERS OF AMERICA LOCAL 6215 AFL-CIO and Bonnie Mathias, Appellees
• Court: Texas Court of Appeals

536 S.W.3d 38

Tarsha HARDY, Appellant

v.COMMUNICATION WORKERS OF AMERICA LOCAL 6215 AFL-CIO and Bonnie Mathias, Appellees¹

No. 05-16-00829-CV

Court of Appeals of Texas, Dallas.

Opinion Filed March 31, 2017.

Joseph Wesley Dauphinot, Dauphinot Law Firm, Arlington, TX, for Appellant.

John E. Agnew, John Edward Collins, Burleson, Pate & Gibson, Dallas, TX, for Appellee.

Before Justices Lang, Fillmore, and Schenck

Opinion by Justice Fillmore

Tarsha Hardy sued Bonnie Mathias and Mathias's employer, the Communication Workers of America Local 6215 (the CWA), alleging she had been slandered by statements made by Mathias that were reported by a local television station. Mathias and the CWA both moved for summary judgment on the ground there was no evidence Hardy requested a correction, clarification, or retraction of Mathias's statements as required by the Defamation Mitigation Act. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 73.051 –.062 (West Supp. 2016) (the DMA). The trial court granted the no-evidence motions for summary judgment and dismissed Hardy's claims with prejudice. On appeal, Hardy asserts the trial court erred by granting the no-evidence motions for summary judgment because (1) Mathias and the CWA failed, within sixty days of being served with citation, to notify Hardy that they intended to use the DMA as a defense to liability; (2) applying the DMA to bar Hardy's claims was inconsistent with the legislative intent underlying the statute; and (3) the DMA does not apply when the publisher of the statement acts with malice.

Pursuant to the DMA, a plaintiff may maintain a cause of action for defamation only if she timely and sufficiently requested a correction, clarification, or retraction of an allegedly defamatory statement or if the defendant has made a correction, clarification, or retraction. Id. § 73.055(a). The trial court determined that Hardy's lawsuit could be dismissed through a no-evidence summary judgment based on Hardy's failure to make a request that complied with section 73.055. See TEX. R. CIV. P. 166a(i). Construing the DMA in its entirety, giving effect to all of its provisions, and considering the purpose of the statute, we conclude that dismissal of the plaintiff's claim is not the consequence authorized by the DMA for a plaintiff's failure to make the required request. Accordingly, the trial court erred by granting the no-evidence motions for summary judgment and dismissing Hardy's claims. We reverse the trial court's judgment and remand this case for further proceedings.

Background

In 2014, Hardy and five other individuals were candidates in the Democratic Party primary for the office of Dallas County District Clerk. No candidate received over fifty percent of the vote in the primary election on March 4, 2014. Hardy, who received the most votes, and Felicia Pitre, the second-place finisher, faced a run-off election on May 27, 2014.

Although the record is not clear as to when Hardy was first employed by the CWA, her employment was terminated on February 17, 2014. On April 22, 2014, Mathias, the vice president of the CWA, made statements that were published by a local television station about an incident that occurred while Hardy was employed by the CWA and about Hardy's job responsibilities at the CWA. Pitre won the run-off election by a large margin.

On April 9, 2015, Hardy sued Mathias and the CWA, alleging she was slandered by Mathias's statements and the statements caused her to lose the run-off election. Hardy specifically alleged that, after she read Mathias's comments and "conferr[ed] with her after the interview," neither Mathias nor the CWA "made any attempt to retract those false statements." Mathias and the CWA responded to the petition with a general denial but did not seek to abate the action.

On February 25, 2016, Mathias and the CWA filed amended answers and affirmative defenses. As relevant to this appeal, Mathias and the CWA asserted as an affirmative defense that Hardy had failed to comply with the DMA and "her claims should be dismissed or in the alternative her claims for punitive damages dismissed." Mathias and the CWA subsequently filed motions for summary judgment on grounds there was no evidence (1) Hardy "requested a retraction of the statements made by Defendant Mathias as required by § 73.055 of the Civil Practice and Remedies Code. Such request is a condition precedent to bringing this action"; (2) Mathias's statements were untrue at the time they were made; (3) Mathias acted with actual malice in that she either knew the statements were false or acted with reckless disregard of whether they were true; and (4) Mathias's conduct in publishing the statements was a proximate cause of any injury or damage to Hardy. Mathias and the CWA set for hearing only their request for summary judgment based on Hardy's "failure to meet the requirements as set forth in the Civil Practice and Remedies Code § 73.055."

Hardy responded to the motions and argued Mathias and the CWA failed to challenge the sufficiency or timeliness of a request for a correction, clarification, or retraction within sixty days of service of citation and, therefore, waived their affirmative defense. See TEX. CIV. PRAC. & REM. CODE ANN. § 73.058(c). As summary judgment evidence, Hardy relied on the proofs of service of citation on Mathias and the CWA and on Mathias's and the CWA's original and amended answers. The trial court granted Mathias's and the CWA's no-evidence motions for summary judgment and ordered that Hardy's claims were dismissed with prejudice.

Standard of Review

We review a trial court's decision to grant summary judgment de novo. Merriman v. XTO Energy, Inc. , 407 S.W.3d 244, 248 (Tex. 2013). After an adequate time for discovery, a party may move for summary judgment on the ground there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. TEX. R. CIV. P. 166a(i). To defeat the summary judgment, the nonmovant must produce summary judgment evidence that raises a genuine issue of material fact on each of the challenged elements. TEX. R. CIV. P. 166a(i) ; Merriman , 407 S.W.3d at 248. A movant, however, is not entitled to prevail on a no-evidence motion for summary judgment on a ground that is not an essential element of the nonmovant's claim or on which the nonmovant does not have the burden of proof. See Villarreal v. Wells Fargo Brokerage Servs., LLC , 315 S.W.3d 109, 127 (Tex. App.—Houston [1st Dist.] 2010, no pet.) ("Here, the only element identified by the movants as entitling them to summary judgment is not an element of the Chapas' assisting-in-breach-of-fiduciary-duty claim, as pleaded. Accordingly, summary judgment cannot be properly granted on the movants' no-evidence summary judgment motion." (internal footnotes omitted)).²

The DMA

The DMA was enacted by the Texas Legislature in 2013 for the purpose of "provid[ing] 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 ANN. § 73.052. The DMA applies to "a claim for relief, however characterized, for damages arising out of harm to personal reputation caused by the false content of a publication" and to all publications, including writings, broadcasts, oral communications, electronic transmissions, or other forms of transmitting information. Id. § 73.054.

Section 73.055(a) of the DMA provides that:

(a) 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.

Id. § 73.055(a). A defendant in a suit to which the DMA applies who does not receive a written request for correction, clarification, or retraction "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." Id. § 73.062(a). The suit is automatically abated, without a court order, beginning on the eleventh day after the date the plea in abatement is filed, if the plea in abatement:

(1) is verified and alleges that the person against whom the suit is pending did not receive the written request as required by Section 73.055 ; and

(2) is not controverted in an affidavit filed by the person bringing the claim before the 11th day after the date on which the plea in abatement is filed.

Id. § 73.062(b). The abatement continues until the sixtieth day after the date the written request is served or a later date agreed to by the parties. Id. § 73.062(c).³

A request for correction, clarification, or retraction is timely if it is made during the period of limitations applicable to a claim for defamation. Id. § 73.055(b). However, a plaintiff who does not request a correction, clarification, or retraction within ninety days after receiving knowledge of a publication may not recover exemplary damages. Id. § 73.055(c) ; Neely v. Wilson , 418 S.W.3d 52, 63 (Tex. 2013). A request for correction, clarification, or retraction is sufficient if it:

(1) is served on the publisher;

(2) is made in writing, reasonably identifies the person making the request, and is signed by the individual claiming to have been defamed or by the person's authorized attorney or agent;

(3) states with particularity the statement alleged to be false and defamatory and, to the extent known, the time and place of publication;

(4) alleges the defamatory meaning of the statement; and

(5) specifies the circumstances causing a defamatory meaning of the statement if it arises from something other than the express language of the publication.

TEX. CIV. PRAC. & REM. CODE ANN. § 73.055(d). A defendant who intends to challenge the sufficiency or timeliness of a request for a correction, clarification, or retraction must do so in a motion to declare the request insufficient or untimely that is served on...