Melodie McFarland and Pamela Lykes v. Stacie Boisseau--Appeal from 234th District Court of Harris County (Majority)

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 1st District Court of Appeals » 2011 » Melodie McFarland and Pamela Lykes v. Stacie Boisseau--Appeal from 234th District Court of Harris County (Majority)

State: Texas

Court: Texas Northern District Court

Docket No: 01-11-00088-CV

Case Date: 12/15/2011

Plaintiff: Melodie McFarland and Pamela Lykes

Defendant: Stacie Boisseau--Appeal from 234th District Court of Harris County (Majority)

Preview: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

OPINION Appellants, Melodie McFarland and Pamela Lykes, challenge the jury verdict determining they published statements about appellee, Stacie Boisseau, that were defamatory per se. In three issues, appellants argue (1) most of the

statements were not defamatory per se and should not 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
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.

2

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 3

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 4

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, 5

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 6

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

Download 01-11-00088-cv.pdf