

Opinion issued December 15, 2011

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-11-00088-CV
———————————
Melodie McFarland
and Pamela Lykes, Appellant
V.
Stacie Boisseau, Appellee

 

 
On
Appeal from the 234th District Court
Harris
County, Texas

Trial Court Case No. 2008-49925
 

 
O P I
N I O N
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 have 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 (3) 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
Boisseau 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 that 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 of 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 the 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 of 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
subsequent 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 the 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 are 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 because 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, 936 S.W.2d 673, 677 (Tex. App.—Houston [14th Dist.] 1996, writ
denied) (holding adverse ruling is
required to preserve issue on appeal).
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 about.  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 the jury charge.  See Romero
v. KPH Consolidation, Inc., 166 S.W.3d 212, 225 (Tex. 2005) (considering
whether there was error in the jury charge question on apportionment after a
basis for liability was determined to be invalid).  Accordingly, we apply the standard of review
for charge error.
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., 802 S.W.2d 647, 649 (Tex. 1990); Moss v. Waste
Mgmt. of Tex., Inc., 305 S.W.3d 76, 81 (Tex. App.—Houston [1st Dist.] 2009,
pet. denied).  A trial court abuses its
discretion when it acts in an arbitrary or unreasonable manner, or if it acts
without reference to any guiding rules or principles.  Tex. Dep’t of Human Servs., 802 S.W.2d at 649; Moss, 305 S.W.3d at 81.  A trial court has wide discretion in
submitting instructions and jury questions.  Moss,
305 S.W.3d at 81.
If
we determine that the jury charge was erroneous, we must then consider whether
the error requires reversal.  See Transcon. Ins. Co. v. Crump, 330
S.W.3d 211, 225 (Tex. 2010).  Generally,
charge error requires reversal of a judgment only where the error was harmful
in the sense that it probably caused rendition of an improper verdict.  Id.  In the context of a Casteel problem, however, the comingling of valid and invalid
theories of liability in a single jury question may make it impossible for the
court of appeals to determine whether the jury based its verdict on a properly
submitted theory or on an invalid theory that should not have been submitted.  See Crown
Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000) (finding harmful error where trial court’s
charge contained broad-form liability question that submitted, along with valid
theories of liability, theories of liability under Deceptive Trade Practices
Act (“DTPA”) that plaintiff could not assert because he was not a consumer).  In that situation, the error will be deemed
harmful and a new trial is required.  Id. at 388–89.
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 court
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 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 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. 
22 S.W.3d at 387.  The question
itself, however, was a single broad-form question on liability.  Id.  The Texas Supreme Court held that “when a
trial court submits a single broad-form liability question incorporating
multiple theories of liability, the error is harmful and a new trial is
required when the appellate court cannot determine whether the jury based its
verdict on an improperly submitted invalid theory.”  Id.
at 388.
Similarly, in Romero,
the jury found the defendants, including Columbia, liable under a claim of negligence
in the first jury question.  166 S.W.3d at
225.  The jury found Columbia liable
under a claim of malicious credentialing in the second jury question.  Id.  A subsequent question asked the jury to
apportion responsibility between the defendants for the plaintiff’s injury.  Id.  This question did not have the jury apportion
based on each defendants’ bases for liability. 
See id. at 225–26.
On appeal, Columbia argued there was no evidence to
support 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 the plaintiff’s 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 on 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 presenting 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 damages no longer
reflected the remaining bases 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, 22 S.W.3d at 387; Romero,
166 S.W.3d at 224.  As in Casteel and Romero, the jury in this case had to make a single determination
based on both the valid and invalid theories. 
See Casteel, 22 S.W.3d at 388;
Romero, 166 S.W.3d at 225.  In this case, the determination was on
damages.  As in Casteel and Romero, it is
impossible to ascertain whether the jury determined damages based on one, some,
or all of the statements identified as defamatory per se and, thus, 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.  See Casteel,
22 S.W.3d at 388; Romero, 166 S.W.3d
at 226.  This requires reversal and a new
trial.  Casteel, 22 S.W.3d at 388; Romero,
166 S.W.3d at 228.
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.  166
S.W.3d at 228.  It also objected,
however, to separating out the bases for liability under the question on
apportionment.  Id. at 228–29.  The Texas
Supreme Court noted that “there would have been no problem with the
apportionment question” if the trial court had properly struck the invalid
basis for liability before the question of apportionment went to the jury.  Id.
at 229.  The same is true here: there
would have been no problem with the damages question if the trial court had
struck the invalid bases for liability before they were presented to the jury.
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, 855 F.2d 1106, 1124 (5th Cir. 1988), superseded by statute on other grounds as
recognized in Fid. & Deposit Co. of Md. v. Commercial Cas. Consultants,
Inc., 976 F.2d 272 (5th Cir. 1992) (calling issue of whether objection must
be made to form of submission “a close and difficult question”)).
Two appellate courts have subsequently considered the
issue that the Texas Supreme Court left unanswered in Romero: the Fourteenth Court of Appeals in Mo. Pac. R.R. Co. v. Limmer, 180 S.W.3d 803 (Tex. App.—Houston
[14th Dist.] 2005), rev’d on other
grounds, 299 S.W.3d 78 (Tex. 2009) and the Eleventh Court of Appeals in Schrock v. Sisco, 229 S.W.3d 392 (Tex.
App.—Eastland 2007, no pet.).  Both
courts considered the Fifth Circuit case cited by the Texas Supreme Court in Romero. 
Limmer, 180 S.W.3d at 822; Schrock, 229 S.W.3d at 395.  In, Pan
Eastern Exploration, the Fifth Circuit stated, “It seems likely that in the
case of a potentially ambiguous general verdict all the complaining party must
do to protect his rights is to object to the charge and the submission vel non of the questionable theory or
theories . . . .”  855
F.2d at 1124.  Both the Fourteenth and
Eleventh Courts of Appeals concluded that, once a party objects to the inclusion
of invalid bases for liability in the charge, this objection also preserves
error for any impact the wrongful inclusion has on other charge questions.  Limmer,
180 S.W.3d at 823; Schrock, 229
S.W.3d at 395.  That is, an objection to
the form of all other impacted questions is not necessary to preserve the issue
for appeal.
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.
 
 
                                                                   Laura
Carter Higley
                                                                   Justice

 
Panel consists of Justices Keyes, Higley, and Massengale.




[1]           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 this
appeal.  Accordingly, the third sister’s
involvement in the suit and in the underlying events is not relevant to this
appeal.


