With today’s orders list, the Texas Supreme Court issued opinions in six cases and chose four petitions for oral argument this fall.

There was a defamation case that will get media attention. (Everyone likes to read about their own business, newspaper and TV reporters included.) With that in mind, those of you readers in the appellate business should pay especially close attention to two of the less prominent cases today — both of which were decided on questions of appellate waiver.


Defamation for republishing defamation by others; the substantive-truth “gist” defense

The Court revisited its earlier decision in McIlvain v. Jacobs, 794 S.W.2d 14 (Tex. 1990), dealing with media reports that repeat third-party allegations. The McIlvain opinion was very short, and somewhat unclear.

In this case, the broadcaster reported various allegations against a medical provider, some of which were statements made in third-party disciplinary proceedings. The story juxtaposed details of disciplinary proceedings related to substance abuse with (unrelated) allegations being made in a lawsuit about medical mistakes, weaving them together in a way that the doctor claims conveyed the impression that he had been disciplined for using substances while operating on patients, which was not true.

The court of appeals, relying on McIlvain, concluded that Texas law did not allow defamation liability to someone who repeated a third-party’s defamatory allegation, such as the raw materials for this story.

The Texas Supreme Court disagreed, both with that holding and with whether these defendants had carried their summary-judgment burden of showing the broadcast as a whole was substantially true.

As the Court explained, “the almost-universal rule in the United States is that one is liable for republishing a defamatory statement. McIlvain did not change that rule but rather reaffirmed that one must prove the substantial truth of the gist of a broadcast to avail oneself of the truth defense.” So, the “third-party allegation” rule is not a complete defense.

The Court then analyzed whether the record conclusively established the “substantial truth” of the story to support summary judgment. The measuring stick is whether the “broadcast taken as a whole is more damaging to the plaintiff’s reputation than a truthful broadcast would have been.”

In that, the Court looks to the story’s “gist”: “A broadcast with specific statements that err in the details but that correctly convey the gist of a story is substantially true. … On the other hand, a broadcast ‘can convey a false and defamatory meaning by omitting or juxtaposing facts, even though all the story’s individual statements considered in isolation were literally true or non-defamatory.'” Thus, the focus is not on whether small details are precisely true, but rather on the overall impact on the reader.

The Court concluded that, based on this summary-judgment record, “a person of ordinary intelligence could conclude that the gist of the broadcast at issue was that the physician was disciplined for operating on patients while taking dangerous drugs or controlled substances.” Because that is more damaging to his reputation than a truthful report would have been, it was not proper to grant summary judgment on the substantial-truth defense.

Waiver: Failing to appeal certain dismissed health-care claims can effectively waive your right to contest the others

Among other claims, the plaintiff filed sued this nursing home for retaliation and fraudulent billing and filed an expert report, which the trial court found to be deficient. The trial court dismissed the billing claim but not the retaliation claim. The nursing home appealed the retaliation claim; the plaintiff appealed the dismissal of the billing claim.

Ultimately, the Texas Supreme Court did not reach the merits of whether a retaliation claim was covered. Instead, the Court noted that it was based on the same facts as one of the other medical claims that was dismissed — and because the plaintiff here failed to appeal that dismissal, the issue was essentially waived in the trial court.

This is an interesting holding for those who are deciding which issues to appeal, and I’m still digesting how it fits with the recent holding in Certified EMS, Inc. d/b/a Cpns Staffing v. Cherie Potts, No. 11-0517 that an expert report need only address a single valid health-care liability theory to avoid dismissal. The suggestion of Certified EMS is that having one valid theory is enough to win on appeal; the suggestion of PM Management-Trinity is that failing to appeal every related theory can result in waiver on appeal. The lesson for plaintiffs may be to winnow out your weakest claims before the expert-report stage so you don’t risk an appellate waiver later.

Waiver: When it’s ambiguous whether a claim has been disposed by summary judgment

What should an appellant do if it’s not clear whether a summary-judgment motion actually addressed all claims in the case?

Here, two claims were advanced: social-host liability and negligent undertaking. The trial court granted summary judgment. On appeal, the plaintiff argued that the defendant’s motion had failed to address one of the claims (negligent undertaking) and thus the trial court’s award of summary judgment should be reversed in part. The court of appeals agreed.

The Texas Supreme Court concluded that the trial-court motion actually was broad enough to reach both claims because one of the motion’s grounds was framed broadly enough to cover both duty rules. So the Court reversed without reaching the merits of whether summary judgment was proper.

But, instead of remanding to the court of appeals for it to address those merits, the Court concluded it could not. Why? Because the appellant’s brief here only challenged the procedural question whether the summary judgment reached both claims, not whether the record was sufficient to support summary judgment on the second claim, the substantive question was waived on appeal. The Court thus reinstated the trial court’s original summary judgment.

The lesson: If it’s not clear whether a summary-judgment motion resolves all claims, a careful appellate lawyer will argue both about that procedural question and the substance of the claim to avoid this case-killing waiver.

Estoppel is not effective against a child-support obligation

After a child-support obligation was imposed on a father, the two parents agreed that in exchange for him acceding to a termination of parental rights, his child-support obligation would cease. They signed paperwork to that effect, which was never filed with a court.

Nine years later, the father was sued by OAG seeking to collect $81,000 in child support and arrearages. The father argued that he had relied on the mother’s representation and that collection should thus be estopped as inequitable.

The Court rejected the estoppel argument, explaining that under the statute, child support

is not a debt owed to the other parent. For that reason, estoppel would be inappropriate here. That doctrine protects a party who is harmed by relying on the promises or actions of another. In such situations, the harmed party, who might otherwise be at fault, is excused from performance or payment of a debt. But in cases involving child support, the assertion of the defense would compromise the welfare of a child who is at the mercy of his parents’ choices. …

As a result, the parents’ actions, either collectively or alone, cannot affect the support duty, except as provided by statute.

The Court did not address whether the trial court could have approved the parties’ agreement here, but in the absence of such an order, the father could not avoid the duty to pay support.

Gambling machines

The Court agreed with the State that certain “eight-liner” machines qualified as gambling equipment for purposes of civil forfeiture. The dispute was whether the machines offered “exclusively … noncash merchandise prizes, toys, or novelties, or a representation of value redeemable for those items.” The State argued, and the Court agreed, that the machines fell outside that narrow exclusion.

Calculating benefits for city workers

The Court construed some city ordinances about calculating overtime pay and termination benefits for firefighters. Ultimately, it concluded that certain overtime pay by these plaintiffs was not earned but that the city had underpaid termination benefits by excluding certain aspects of their compensation from the calculation of their prior “salary.”

Chosen for Argument

The descriptions of the cases below were taken from Osler McCarthy’s summary of the issues: