That was the question raised in ZYZY Corporation v. Gloria Hernandez, No. 04-10-00311-CV (Tex. App.—San Antonio Jan. 26, 2011). And it’s one that should interest lawyers with newsworthy cases and newspaper reporters alike (and, of course, the law bloggers who live in both worlds).

The plaintiff in this libel case is Gloria Hernandez, a lawyer who represented the Kickapoo Traditional Tribe of Texas over several years. On April 26, 2006, she testified at a hearing in tribal court. When asked how much of her legal practice involved work for the Tribe, Hernandez testified “I make roughly about ten percent of my income from the tribe.”

The next day, the local newspaper Eagle Pass News-Guide (owned by ZYZY) reported this:

The most damning of testimony came when Hernandez admitted on the stand that she rakes off a 10% share of Lucky Eagle Casino profits for her services to the handful of remaining Kickapoo insurgents. This admission is a clear cut violation of National Indian Gaming Commission rules and regulations which require approval of any management contract by an outsider hired to oversee an Indian casino operation. And Hernandez leaves little doubt she intended to defraud to [sic] the federal governmental agency when she has never listed herself as anything but a legal representative to the Kickapoo Tribe of Texas.

A year later, this lawsuit was filed. (( This appeal also involved a statute-of-limitations question that’s perhaps of less interest to readers. If you worry that a local holiday that leads to a court closing won’t extend the deadline — here, the courthouse was closed for “Battle of Flowers” holiday festivities — then this case should allay your fears. )) Among other arguments, the newspaper sought summary judgment on the ground that Hernandez was a limited-purpose public figure and, thus, would have to show “actual malice” to prove libel. The trial court disagreed, and the newspaper filed the interlocutory appeal permitted by Texas law. Tex. Civ. Prac. & Rem. Code §51.014(a)(6).

The newspaper’s primary argument was that Hernandez, through her role with the Tribe, had injected herself into the dispute itself to become a limited-purpose public figure. There is a three-part test under Texas law:

(1) the controversy at issue must be public both in the sense that people are discussing it and people other than the immediate participants in the controversy are likely to feel the impact of its resolution;

(2) the plaintiff must have more than a trivial or tangential role in the controversy; and

(3) the alleged defamation must be germane to the plaintiff’s participation in the controversy.

WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). The court of appeals focused on the second element, Hernandez’s role.

As the court of appeals framed the newspaper’s argument: “ZYZY contends Hernandez played more than a trivial or tangential role in the dispute because she injected herself into the controversy beyond her role as an advocate for one side.” As support, the newspaper introduced a significant number of newspaper articles from the time period — both from its own archives and from nearby newspapers — which cover the Tribe and mention Hernandez by name. But at oral argument, we are told, “counsel for ZYZY acknowledged that the Eagle Pass papers’ reporting alone could not make Hernandez a public figure.”

The newspaper also relied on Hernandez’s testimony about her role with the Tribe, which apparently involved speaking with public officials on the Tribe’s behalf. The court of appeals was not impressed: “We hold that merely accompanying a client to meet with elected officials to discuss matters of importance in his district or to meet with representatives of agencies that have some oversight authority over the lawyer’s client does not make a lawyer a public figure.”

And the newspaper pointed to other newspaper articles (including from other publishers, such as the San Antonio Express-News and Dallas Morning News) in which Hernandez had been quoted by name. After examining those articles, the court of appeals concluded that the way she was quoted suggested only that she was “responding to press inquiries regarding legal matters affecting the tribe.”

Having walked through the newspaper’s summary-judgment evidence, the court of appeals held that it

does not show that [Hernandez] became involved in the controversy regarding the tribe leadership beyond her role as a legal advocate, that she thrust herself into the public eye by engaging the media, had any special access to the media, or that she used the media in an attempt to influence the outcome of the controversy. On this record, we cannot say that ZYZY established as a matter of law that Hernandez is a limited-purpose public figure.

Hat tip: “Newspaper in the Hot Seat for Hatchet Job on Lawyer” (Courthouse News Service)

With today’s orders list, the Texas Supreme Court issued one per curiam opinion. The Court did not choose any new petitions for its argument calendar.

An affidavit of indigency must be challenged within 10 days

In re C.H.C., a child, No. 09-0480 (per curiam) (DDB)

Many first-time litigants are surprised to learn that the parties themselves must pay for the preparation of the transcript of trial court proceedings (the “Reporter’s Record”). After the trial proceedings conclude, a party who wishes to appeal generally must make arrangements to pay for that transcript to be sent to the court of appeals. (( Some purely legal disputes don’t require this reporter’s record, but anything that involves disputes over facts invariably does. ))

The problem for the justice system arises when the party cannot, due to financial hardship, pay. In Texas, the rules permit a party to file an “affidavit of indigency” establishing that they qualify for a free appellate record. See Tex. R. App. P. 20.

Who could object? Well, in addition to the adverse party (who might like to win without an appeal), both the court reporter and district clerk have a financial incentive to object to a private party not paying the full customary fees.

This appeal grew out of a child-custody dispute. The mother filed documents attempting to establish her indigency. She included an affidavit but no supporting exhibits; she did not, in that affidavit, walk through each of the elements discussed in Rule 20. No party filed an objection within 10 days.

Soon thereafter, the mother’s counsel withdrew. She later filed another motion about her indigency (which seemed to be asking the trial court to rule on her previous request), and when this new motion was set for a hearing, the father eventually raised objections to the affidavit.

The mother then filed a second, expanded affidavit about her indigency, attempting to address those concerns. No party objected within 10 days.

The trial court ultimately denied the mother’s request to be classified as indigent. She then sought relief from the court of appeals, which ordered the trial court to hold yet another hearing because it found the situation “unclear.”

The mother sought relief from the Texas Supreme Court. The Court now holds that the mother’s two original affidavits — neither of which was timely challenged — were good enough, even if they did not formally walk through each element in the Rule.

The Court’s opinion hedges somewhat about what is required for future affidavits. Although it says that the first affidavit “clearly indicates that [the mother] would be unable to afford the costs of appeal,” it then proceeds to say, “[e]ven if [the first] affidavit were deemed too conclusory,” the second was even more detailed. [To avoid any uncertainty, litigants will want to be as detailed as possible. That will also protect them if a contest is filed.]

The thrust of the holding, however, is plain enough. A party’s affidavit of indigency, if it is good enough to carry their burden (“preponderance of the evidence”) to establish their inability to pay, must be challenged within 10 days. If there is no timely challenge, the trial court must give it the benefit of the doubt.

With Friday’s orders list, the Texas Supreme Court issued ten decisions — which as I noted in a tweet, each included an “M.D.”, an “R.N.”, or a hospital in the case caption. Six of the ten decisions are GVR (“grant, vacate, and remand”) dispositions asking the court of appeals to reconsider its answer in light of the Franka case (announced today).

For those scoring along at home, of the four lead cases, two favored the medical provider and two the plaintiff. The biggest one — about the scope of immunity for government doctors — favored the government’s side.

The Court also filled out its March 3 argument calendar by re-setting some previously granted cases: Insurance Company of the State of Pennsylvania v. Carmen Muro, No. 09-0340 (DDB, and In re State, No. 10-0235 (DDB).

As the orders list notes, these March 3, 2011 arguments will be held at UT-Pan American in Edinburg.

Issues:

• The scope of the immunity shield of § 101.106, which forces plaintiffs to choose between suing a government entity and suing a government employee, in the context of medical malpractice. (The medical professionals get this shield even when the plaintiff did not have the option of suing the institution.) The Court announced six GVRs related to this opinion.

• A tension between the medical-malpractice reform act’s two-year statute of limitations and the tolling provisions of the comparative-responsibility statute in Chapter 33 of the civil practice and remedies code. (The med-mal statute wins.)

• Whether a government entity can invoke the statute of limitations when a plaintiff accidentally sued an official by name rather than the entity itself. (No, at least not when the lawsuit is framed in the “official capacity” of the defendant.)

• And a decision about the scope of “implied findings” when the trial court does not issue formal findings of fact. (The court of appeals cannot affirm on an alternative ground if that relies on a finding not strictly necessary to the judgment it announced.)

[Read more →]

With the changing of the calendar year, the Texas Supreme Court has turned over the odometer on its docket numbering. Beginning Monday, each new petition is assigned a number beginning “11-“.

The first petition of the year is Chea v. Poon, No. 11-0001 (DDB), an appeal out of Houston’s 14th Court challenging a no-evidence summary judgment.

The petition was just filed yesterday, but it doesn’t have far to go to surpass last year’s first petition (see docket), which went from filed to denied the next day.

The Texas Supreme Court’s argument sitting for the month is January 4th. The Court will be hearing just two arguments. (A third argument was postponed at the parties’ request.)

The two cases being argued are Texas A&M University – Kingsville v. Melody Yarbrough, No. 09‑0999 (DDB) and Lancer Insurance Co. v. Garcia Holiday Tours, et al., No. 10‑0096 (DDB). I wrote summaries of the issues in both cases in this earlier post, and (as always) you can click the “DDB” links to get to the briefs, underlying opinions, and other details.

In a case that is an unfortunate reflection of the times, the Texas Supreme Court will be asked to decide whether the Texas Constitution’s homestead exemption has an unwritten exception if the debtor has misrepresented whether the property is being used as a residence.

The case Villareal v. Showalter, No. 10-0940 (DB; certification order), comes to the Texas Supreme Court as a certified question from the Fifth Circuit.

Read more about this issue

This week, the Texas Supreme Court heard oral arguments in four cases. On Tuesday, the Court sat in Austin; on Wednesday, the Court had a special sitting in Amarillo. (( I don’t know whether audio or video recordings were made of the Amarillo sitting or when they will be available online. ))

On Tuesday, the Court heard arguments about the oil & gas question certified from the Fifth Circuit. The Court also heard arguments (yet again) about when an extension can be granted to cure a deficient medical-malpractice expert report. (A third case, which was a dispute between two insurers about additional insureds under a CGL policy, was dismissed before argument pursuant to the parties’ settlement.)

On Wednesday, the Court heard arguments about whether a prisoner who was wrongfully convicted of a second crime and had his parole for a previous crime revoked could be compensated for the time served for that parole revocation. The Court also heard a case about how to plead tax liens as a defense.

Read a little about these cases

This morning, the Texas Supreme Court begins its October argument sitting. You can, as always, watch the live webcast or later review the oral argument videos on iTunes (link opens iTunes).

Each day has at least one case that may attract some public attention. On Tuesday, the Court hears a case involving a challenge to Texas’s use of electronic-voting machines. On Wednesday, the Court hears a case that could have huge effects on the calculation of child-support payments. On Thursday, the Court hears a petition that asks it to set new rules for discovery into defendants’ net worth, as well as a class action case about racially disparate impacts due to credit scoring by insurance companies.

(The net-worth-discovery case was dismissed before argument after the claims at issue were dropped.)

Read more about the cases being argued