Hogan v. Zoanni

Full title: LEMUEL DAVID HOGAN, PETITIONER, v. STEPHANIE MONTAGNE ZOANNI, RESPONDENT

Court: SUPREME COURT OF TEXAS

Date published: Jun 4, 2021

627 S.W.3d 163 (Tex. 2021)

Opinion

No. 18-0944

06-04-2021

Lemuel David HOGAN, Petitioner v. Stephanie Montagne ZOANNI, Respondent

Dennis Marston Slate, Deer Park, Dannielle-Mahree Simms, James Gutheinz, Brian H. Crockett, Timothy A. Hootman, Houston, Shailey Gupta-Brietzke, for Petitioner. Jelena Kovacevic, Harry Herzog, for Respondent.

Dennis Marston Slate, Deer Park, Dannielle-Mahree Simms, James Gutheinz, Brian H. Crockett, Timothy A. Hootman, Houston, Shailey Gupta-Brietzke, for Petitioner.

Jelena Kovacevic, Harry Herzog, for Respondent.

Justice Devine announced the Court's judgment and delivered an opinion, in which Justice Guzman, Justice Lehrmann, and Justice Busby joined.

In this defamation case, we must determine whether the trial court properly denied a defendant's motion for directed verdict as to nine of thirteen allegedly defamatory statements. Under the Defamation Mitigation Act (DMA), a plaintiff "may maintain an action for defamation only if" the plaintiff makes a timely and sufficient statutory request for correction, clarification, or retraction from the defendant or if a defendant makes a correction, clarification, or retraction. See TEX. CIV. PRAC. & REM. CODE § 73.055(a). The defendant asserts the statute's "only if" language is mandatory, creating a precondition to suit for each allegedly defamatory statement. The plaintiff claims the DMA is only a notice statute not meant to foreclose a plaintiff's timely filed cause of action. Rather, if a defendant believes statutory notice is lacking, the defendant must timely object or invoke the statutory abatement process. See id. §§ 73.058(c), .062.

The court of appeals generally agreed with the defendant, concluding that a request is a necessary predicate to submit each alleged instance of defamation to the jury and that the consequence of a plaintiff's failure to make the required request is dismissal of the underlying defamation claim. 555 S.W.3d 321 (Tex. App.—Houston [1st Dist.] 2018). Because the court concluded that only four of thirteen statements submitted to the jury in a nonsegregated jury question met the DMA's requirements, the court of appeals reversed and remanded for a new trial with respect to only those four defamation claims. We conclude, however, that the DMA prescribes the abatement of claims and loss of exemplary damages, rather than dismissal, and empowers the defendant to seek that relief. Because the DMA provides for abatement, not dismissal, and that remedy was available to the defendant when the plaintiff amended his complaint to add the nine disputed statements, the trial court did not err in denying the defendant's motion for directed verdict as to those claims. We accordingly reverse the court of appeals’ judgment and remand the case to that court to consider unaddressed issues.

I. Background

Plaintiff David Hogan is an executive pastor at a Houston church. In 2011, he divorced his wife, defendant Stephanie Zoanni, who was awarded primary custody of their child. After the divorce, Zoanni published a litany of statements online, to the police, and to Hogan's church leadership stating he is a pedophile, pervert, and patron of child pornography. In a letter to Zoanni dated March 7, 2014, Hogan demanded that Zoanni "cease and desist all defamation of David Hogan's character and reputation." It additionally included statements of Zoanni's "lies, insinuations, and innuendos about [Hogan]’s character and mistreatment of women." The letter specifically referenced a February 5, 2014 email Zoanni sent to the General Secretary of the Assemblies of God and a blog post entitled "What good dad DOES NOT do."

After sending the letter, Hogan sued Zoanni, alleging causes of action for defamation, invasion of privacy, malicious prosecution, abuse of the child protective services process, and intentional infliction of emotional distress. The petition, filed on March 27, 2014, included references to the statements Hogan had made in his earlier letter and sought both actual and exemplary damages.

On April 15, 2016—ten days before trial—Hogan filed his seventh amended petition, which represented the claims that the jury ultimately considered. The amended petition retained only the defamation claims and added nine newly discovered defamatory statements not included in the prior petitions. The amended pleading invoked the relation-back doctrine for each new statement. See TEX. CIV. PRAC. & REM. CODE § 16.068. According to Hogan, because the nine added statements related to the same subject matter as the previously alleged defamatory statements, the statute of limitations did not defeat them. Zoanni never pled a limitations defense to the nine new statements. However, on the first day of trial, Zoanni filed a motion for directed verdict as to the newly added statements and declined the trial court's offer of an abatement. Zoanni argued that as to the new statements, Hogan failed to comply with the DMA's requirements, which obligate a plaintiff to provide a defendant with a timely and sufficient request for correction, clarification, or retraction of each allegedly defamatory statement. Implicit in Zoanni's motion was the notion that a request must be made within the statute of limitations to be "timely." Because the newly proffered statements were made more than a year earlier, Zoanni contended it was no longer possible for Hogan to make a request that complied with the DMA's timeliness requirements as to those statements; hence, the new statements could not be included at trial. The trial court denied the motion for directed verdict and included all thirteen statements in the jury charge. The jury returned a verdict for Hogan totaling $2.1 million in actual damages.

A divided court of appeals reversed and remanded for a new trial on the original four statements alone, holding that Hogan could not recover damages for the nine new statements. 555 S.W.3d at 323–24. The court focused on the DMA's language that "[a] person may maintain an action for defamation only if ... the person has made a timely and sufficient request for correction, clarification, or retraction from the defendant." Id. at 325 (emphasis omitted) (quoting TEX. CIV. PRAC. & REM. CODE § 73.055(a)(1) ). In construing the language of the DMA's notice provision, the court of appeals concluded that Hogan could no longer make a timely request for the nine added statements, that he thus could not "maintain an action for defamation" based on those statements, and that they should not have been submitted to the jury over objection. Id. at 327. And while the DMA provides for abatement and an opportunity to cure when a plaintiff fails to provide a timely and sufficient request, the appellate court reasoned that abatement was no longer available under the statute's terms or capable of providing a cure for the untimely request. Id. at 327–28. Under these circumstances, the court concluded that dismissal of the nine added claims was the appropriate consequence for Hogan's failure to make a timely and sufficient request. Id. at 328.

A dissenting justice reasoned that abatement and loss of exemplary damages are the only remedies available for noncompliance with the DMA. Id. at 336, 338 (Jennings, J., dissenting) (citing TEX. CIV. PRAC. & REM. CODE § 73.062(a) ; Hardy v. Commc'n Workers of Am. Local 6215 AFL–CIO , 536 S.W.3d 38, 47 (Tex. App.—Dallas 2017, pet. denied) ). And regardless of the DMA's abatement procedure, the dissenting justice concluded, Hogan satisfied the statutory requirements when he filed his original petition, which included statements relating to the same subject matter as the newly added statements. Id. at 337. According to the dissent, holding that a court may dismiss a suit for failure to provide adequate notice would undermine the DMA's purposes. Id. at 338 (citing TEX. CIV. PRAC. & REM. CODE § 73.052 ).

II. The Defamation Mitigation Act

The DMA "provide[s] 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 § 73.052. Rather than replace the common-law elements of a defamation claim, the statute prescribes a mechanism for plaintiffs to bring attention to defamatory publications to enable defendants, if they so choose, to take corrective action and thereby mitigate injury stemming from that publication. See Warner Bros. Ent., Inc. v. Jones , 611 S.W.3d 1, 10 (Tex. 2020) (citing TEX. CIV. PRAC. & REM. CODE § 73.055(a) ) ("[The DMA uses] sticks and carrots to induce plaintiffs and defendants to take prompt action to rectify defamatory publications so any ensuing damages are ameliorated."). Alternatively, a defendant may proactively change potentially defamatory statements to mitigate damages and limit liability arising from those statements. Id. ; TEX. CIV. PRAC. & REM. CODE §§ 73.055(a)(2), .059. Either avenue—a plaintiff's request or a defendant's change—will provide the defendant with the requisite notice for a plaintiff to maintain an action for defamation. TEX. CIV. PRAC. & REM. CODE § 73.055(a) ; see Warner Bros. Ent., Inc. , 611 S.W.3d at 10.

Zoanni contended in her motion to dismiss before the trial court that Hogan's defamation claims for the nine new statements did not comply with the DMA because Hogan neither made a request for a correction, clarification, or retraction from Zoanni nor relied on a change made by her to those statements. A plaintiff makes a compliant request if that request is "timely" and "sufficient." TEX. CIV. PRAC. & REM. CODE § 73.055(a)(1). A request "is timely if made during the period of limitation for commencement of an action for defamation." Id. § 73.055(b). A request 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.

Id. § 73.055(d). A defendant may challenge whether it received an appropriate request in two ways: (1) within sixty days of service of citation "in a motion to declare the request insufficient or untimely," id. § 73.058(c); or (2) within thirty days of filing an original answer by filing a plea in abatement, id. § 73.062(a). Unless the plaintiff files a controverting affidavit, the suit "automatically abate[s]" eleven days after the plea is filed "without the order of the court" if that plea "is verified and alleges" the defendant "did not receive the written request required by Section 73.055." Id. § 73.062(b). The suit remains abated for sixty days after the plaintiff provides the written request unless the parties agree to a later date. Id. § 73.062(c).

In addition to the abatement remedy, the DMA also explicitly limits recoverable damages. First, under specified circumstances, the DMA forecloses an award of exemplary damages. Id. §§ 73.055(c), .056(b), .059. Second, with or without a request or change, defendants can introduce evidence in mitigation of damages in accordance with Section 73.003. Id. §§ 73.003(a)(3), .061(b). And third, with or without a change or request, actual damages remain subject to the general requirement that plaintiffs mitigate their damages to the extent reasonably possible. See id. § 73.003(a)(1).

III. Analysis

A

Neither party argues that Hogan made a request with respect to the nine new statements within a year of their publication. Rather, Hogan asserts that either the nine statements relate back to the original four of a similar nature—the three for which he provided a request and the one Zoanni changed on her own accord—or dismissal is not a remedy the statute provides. According to Hogan, outright dismissal would defeat the statute's expressly stated purpose of providing plaintiffs a method to mitigate perceived damage or injury. See id. § 73.052. While the DMA encourages a plaintiff to make a prompt request, see id. § 73.055(c), it does not shield the defendant from all liability when a plaintiff merely fails to make that request or makes a request that is defective in some respect. Holding otherwise would deprive injured plaintiffs of any remedy at all and, worse, would allow defamatory publications to remain uncorrected in perpetuity. Such a consequence is antithetical to the statute's stated purpose and collaborative scheme.

In response, Zoanni asserts that the DMA's "only if" provision creates a mandatory condition. See id. § 73.055(a). If a plaintiff fails to make a timely request—that is, fails to make a request "during the period of limitation for commencement of an action for defamation"—then the suit must be dismissed because a request made after limitations has expired can never be "timely." Id. § 73.055(b); see id. § 16.002(a) ("A person must bring a suit for malicious prosecution, libel, slander, or breach of promise of marriage not later than one year after the day the cause of action accrues."). Implicit in Zoanni's argument is that a request will always be untimely if made more than a year after publication even if the defamation suit is filed within the limitations period. Furthermore, Zoanni argues that even assuming a timely request could be made more than a year after publication, she was not required to timely object or timely invoke the abatement process because the statutory deadlines for doing so had already expired when the new defamation claims were added. See id. §§ 73.058(c), .062(a). Specifically, she contends that the deadline to have a request declared untimely or insufficient expired sixty days after Hogan's service of citation. See id. § 73.058(c). Additionally, because a plea in abatement that challenges compliance with Section 73.055 must be filed within thirty days after the defendant files an original answer, Zoanni could no longer file a plea in abatement because she filed her original answer when the suit began years earlier. Assuming without deciding that Hogan's nine new statements do not relate back to his original request, as Zoanni asserts, we address whether the DMA mandates dismissal.

B

Whether the DMA requires dismissal of Hogan's defamation claims as to the nine added statements turns on the proper construction of the statute. See AC Ints., L.P. v. Tex. Comm'n on Envtl. Quality , 543 S.W.3d 703, 706 (Tex. 2018). Therefore, we apply traditional principles of statutory interpretation to determine whether the Legislature intended dismissal as a remedy for failure to serve statutory notice before expiration of the statute of limitations. See id. at 708. The purpose of statutory construction is "to effectuate the Legislature's intent by ‘giv[ing] effect to every word, clause, and sentence.’ " Sunstate Equip. Co. v. Hegar , 601 S.W.3d 685, 689–90 (Tex. 2020) (quoting First Am. Title Ins. Co. v. Combs , 258 S.W.3d 627, 631 (Tex. 2008) ). Indeed, the statutory text is the "first and foremost" indication of the Legislature's intent. Greater Hous. P'Ship v. Paxton , 468 S.W.3d 51, 58 (Tex. 2015). We do not look at statutory provisions in isolation but rather derive the Legislature's intent and the statute's meaning from the statute as a whole. TEX. GOV'T CODE § 311.021(2) ; Janvey v. Golf Channel, Inc. , 487 S.W.3d 560, 572 (Tex. 2016). Moreover, we "presume the Legislature chose statutory language deliberately and purposefully," Crosstex Energy Servs., L.P. v. Pro Plus, Inc. , 430 S.W.3d 384, 390 (Tex. 2014), and that it likewise excluded language deliberately and purposefully, Cameron v. Terrell & Garrett, Inc. , 618 S.W.2d 535, 540 (Tex. 1981). Thus, we are cautious not to interpret silence in a way that undermines a statute's purpose. AC Ints., L.P. , 543 S.W.3d at 709 (citing Hines v. Hash , 843 S.W.2d 464, 468 (Tex. 1992) ).

Under the DMA, a plaintiff "may maintain an action for defamation only if : (1) [the plaintiff] 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." TEX. CIV. PRAC. & REM. CODE § 73.055(a) (emphasis added). It is undisputed that Zoanni did not make a "change" within the meaning of Section 73.055(a)(2) as to the nine newly discovered statements. See Warner Bros. Ent., Inc. , 611 S.W.3d at 13–14 (holding defendant's revisions to a publication were a "change" within the meaning of Section 73.055(a)(2) ). Zoanni asserts that the opposite of "maintain" is dismiss, but this understanding contravenes both the commonly understood and contextual meaning of that term.

The Legislature left the term "maintain" undefined. When a term is left undefined in a statute, "we will use the plain and ordinary meaning of the term and interpret it within the context of the statute." EBS Sols., Inc. v. Hegar , 601 S.W.3d 744, 758 (Tex. 2020) (citing TGS–NOPEC Geophysical Co. v. Combs , 340 S.W.3d 432, 441 (Tex. 2011) ). The dictionary defines maintain to mean "to keep in an existing state" or "to continue or preserve in." Maintain , MERRIAM-WEBSTER'S NEW COLLEGIATE DICTIONARY (8th ed. 1977); see Maintain , BLACK'S LAW DICTIONARY (11th ed. 2019) ("[T]o continue (something)."). And it is the ongoing suit that cannot continue if notice was not provided. See TEX. CIV. PRAC. & REM. CODE § 73.055. That is, a plaintiff's lawsuit can continue if a timely and sufficient request for correction, clarification, or retraction has been provided. But that does not mean that failure to provide a request subjects the suit to automatic dismissal. See AC Ints., L.P. , 543 S.W.3d at 709–10 (citing State v. $435,000 , 842 S.W.2d 642, 644 (Tex. 1992) (per curiam) ) (holding that a petition was not subject to automatic dismissal for failure to timely serve); Hines , 843 S.W.2d at 469 (holding that filing an action under the DTPA without adequate pre-suit notice results in abatement rather than dismissal). Instead, the statute's terms determine the appropriate consequence for failure to comply with a notice requirement. See Hines , 843 S.W.2d at 469 ("The Legislature may prescribe the consequences for failure to comply with statutory requirements....").

When the Legislature intends dismissal as the consequence for noncompliance, it clearly says so in the statute. For example, under the Texas Medical Liability Act, "a claimant shall ... serve on the [defendant] or the [defendant's] attorney one or more expert reports." TEX. CIV. PRAC. & REM. CODE § 74.351(a). If "an expert report has not been served ... the court, on the motion of the affected physician or health care provider, shall ... dismiss[ ] the claim," subject to certain exceptions. Id. § 74.351(b)(2), (c) (emphasis added). For suits against certain licensed or registered professionals, the claimant "shall be required to file with the complaint an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor who" meets certain qualifications. Id. § 150.002(a). "A claimant's failure to file the affidavit ... shall result in dismissal of the complaint against the defendant." Id. § 150.002(e) (emphasis added). And in asbestos-or silica-related suits, a claimant must serve a report on each defendant with a host of information. Id. §§ 90.003–.004. If a defendant timely files a motion to dismiss asserting the plaintiff failed to serve the necessary report, and the court is of the opinion that the motion to dismiss is meritorious, "the court shall ... grant the motion and dismiss all of the claimant's asbestos-related claims or silica-related claims." Id. § 90.007(a), (c) (emphases added). Here though, the statute says nothing of dismissal. And when a statute is silent on a subject, we presume the Legislature purposefully excluded that language. Cameron , 618 S.W.2d at 540.

The DMA's express abatement process for addressing challenges to the required request confirms this presumption. If a defendant elects to challenge the receipt of "a written request for a correction, clarification, or retraction, as required by Section 73.055, [the defendant] may file a plea in abatement." TEX. CIV. PRAC. & REM. CODE § 73.062(a). In other words, compliance is challenged at the defendant's election by a plea in abatement. See id. And while Zoanni contends that a plea in abatement would have been meaningless because more than a year had passed since publication of the underlying defamatory statements, that argument is inconsistent with the language of the abatement provision, which contemplates the possibility of notice beyond the limitations period. See id. § 73.062(a) – (c).

Under the abatement provision's terms, a defendant may file a plea in abatement if it "[did] not receive a written request for a correction, clarification, or retraction, as required by Section 73.055." Id. § 73.062(a). Section 73.055 requires that the request be "timely" and "sufficient," while the abatement provision broadly states that a person who does not receive a compliant request may file a plea in abatement. Abatement is thus a vehicle for the defendant to challenge whether (1) the defendant has received a compliant request, (2) the defendant has received a timely, but insufficient request,¹ or (3) the defendant has received a sufficient request outside the limitations period. If the plaintiff responds to the defendant's plea in abatement with proof of a previous request served on the defendant within the limitations period—including a petition—that ticks all of Section 73.055(c) ’s "sufficiency" boxes, then the plaintiff may "maintain" or "continue" the suit. Id. § 73.062(b). However, if the plaintiff cannot produce evidence of such a request, the plaintiff may not "maintain" the suit, which instead is abated. Id. § 73.062(a) – (c). Simply because a request "is timely if made during the period of limitations for commencement of an action for defamation," id. § 73.055(b), does not render a request served beyond the limitations period noncompliant. The statute's phrasing of "timely" in terms of what is sufficient for timeliness rather than what is necessary is significant. For that reason, when a defendant successfully invokes the abatement process with respect to the plaintiff's defamation suit, the abatement provision provides a substitute process for obtaining the request necessary to continue the suit. To exit abatement, the plaintiff must provide a written request in response to the plea in abatement. Id. § 73.062(c). The suit recommences generally sixty days after the plaintiff provides the written request in response to the plea in abatement. Id.

1 Depending on its nature and specificity, a petition may satisfy Section 73.055(d). Section 73.055(d) ’s description of a sufficient request includes, among other things, that a request be "made in writing," "served on the publisher," and "signed by the individual claiming to have been defamed or by the person's authorized attorney or agent." Tex. Civ. Prac. & Rem. Code § 73.055(d)(1)–(2). Under the rules of civil procedure, a petition—which is made in writing—must be served on all defendants (which would include a publisher in a defamation action), and either the plaintiff or the plaintiff's attorney must sign the petition. Tex. R. Civ. P. 21, 57. Because the abatement process is available after service of a petition, the concurrence's reading of Section 73.062 as applying in the absence of a writing misses the mark. Post at ––––. Rather, abatement would apply if the petition were insufficient in other ways or was not served on the defendant within the limitations period because, once the defamation petition is served, those would be the only ways the writing would not be "as required by Section 73.055." Tex. Civ. Prac. & Rem. Code § 73.062(a).

In concluding that dismissal was a statutorily allotted consequence, the court of appeals failed to recognize that all roads under the DMA lead to a loss of exemplary damages rather than dismissal.² 555 S.W.3d at 330. The statute incentivizes plaintiffs to act to avoid an exemplary-damages cutoff and for defendants to respond quickly to invoke one. "If not later than the 90th day after receiving knowledge of the publication, the [plaintiff] does not request a correction, clarification, or retraction, the [plaintiff] may not recover exemplary damages." TEX. CIV. PRAC. & REM. CODE § 73.055(c) (emphasis added). The court of appeals incorrectly interpreted the statute to conclude that a plaintiff's right to exemplary damages would always expire either before limitations or concurrently with it. 555 S.W.3d at 328–29. However, the words the Legislature used when describing the exemplary-damages cutoff are important.

2 Take the dissent's hypothetical of a plaintiff who files suit just before limitations expires as an example. Post at ––––. Assuming the defendant had not already made a sufficient change to eliminate exemplary damages, Tex. Civ. Prac. & Rem. Code §§ 73.055(a)(2), .057, .059, the statute offers multiple avenues to foreclose such an award, absent proof of actual malice. First, a defendant might prove that the plaintiff failed to make a sufficient request within ninety days of obtaining knowledge of the publication. Id. § 73.055(c). Alternatively, a defendant might instead make a sufficient change to the allegedly defamatory publication within thirty days of receipt of a sufficient request. Id. §§ 73.057(a)(1), .059. Or within thirty days of receipt of a plaintiff's request, a defendant might ask for evidence of the allegedly defamatory statement's falsity and subsequently make a timely and sufficient change to the publication. Id. §§ 73.056, .057(a)(2), .059. Each avenue is its own road that leads to a loss of exemplary damages.

In reaching its conclusion, the court of appeals failed to recognize that the limitations clock and exemplary-damages clock are triggered by two separate events and may not expire simultaneously. Under the DMA, the limitations clock is determined by accrual—that is, when an enforceable claim or right comes into existence. Accrue , BLACK'S LAW DICTIONARY (11th ed. 2019); see TEX. CIV. PRAC. & REM. CODE § 16.002(a) ("A person must bring suit for ... [defamation] ... not later than one year after the day the cause of action accrues. " (emphasis added)). Importantly, we have never held that the discovery rule applies to defamation claims except in the narrow circumstance involving a person's discovery of allegedly libelous information filed with a credit agency. See Kelley v. Rinkle , 532 S.W.2d 947, 949 (Tex. 1976). And in fact, we suggested that the discovery rule would rarely extend to other contexts. Id. In other words, we have suggested that for defamation suits, accrual generally occurs the date the publication is made. Conversely, the DMA's exemplary-damages bar is trigged by knowledge , not the date of publication. TEX. CIV. PRAC. & REM. CODE § 73.055(c). Because we presume that the Legislature knew the state of the law at the time of enactment, Dugger v. Arredondo , 408 S.W.3d 825, 835 (Tex. 2013), any interpretation of the DMA must accommodate this textual distinction between knowledge and accrual.

In concluding that a plaintiff's right to exemplary damages necessarily expires with or prior to the limitations period, the court of appeals failed to give effect to Section 73.055(c) ’s focus on knowledge. While a plaintiff's ability to seek exemplary damages very well may end before the limitations period, it could also extend beyond the limitations period depending on when the plaintiff learned of the publication and what the defendant can prove about that matter. Thus, under the terms of the statute, the Legislature contemplated that a plaintiff could provide a sufficient request beyond the limitations period, but it only prescribed a loss of exemplary damages, depending on what a defendant may prove, not dismissal.

Knowledge can be difficult to prove, though. See Rogers v. Ricane Enters., Inc. , 930 S.W.2d 157, 174 (Tex. App.—Amarillo 1996, writ denied). And the DMA affords defendants some assistance in the matter. For example, Section 73.058(c) allows a defendant to file a motion to declare a request either insufficient or untimely within sixty days of service of citation. TEX. CIV. PRAC. & REM. CODE § 73.058(c). A declaration that a plaintiff provided a noncompliant request serves the dual purposes of establishing a date the plaintiff had knowledge of the publication and informing the plaintiff that it has yet to provide a request to possibly preserve exemplary damages.

Although a defendant's proactive change to an allegedly defamatory publication can bar exemplary damages absent actual malice, id. § 73.059, receipt of a request provides defendants additional avenues to bar exemplary damages. Within thirty days of a request, a defendant can either sufficiently change the publication or force the plaintiff to produce evidence of falsity. Id. §§ 73.056, .057(a)(1), .059. If a defendant chooses to request evidence of falsity, the defendant may then respond to the evidence by making a change to bar exemplary damages. Id. §§ 73.057(a)(2), .059. If a plaintiff fails to provide evidence within thirty days, the plaintiff loses its right to exemplary damages absent good cause or proof of actual malice. Id. § 73.056(b). This intentional system of carrots and sticks encourages plaintiffs and defendants to collaborate to mitigate reputational harm by putting the availability of exemplary damages at stake.³ See Warner Bros. Ent., Inc. , 611 S.W.3d at 10.

3 Collaboration is essential to mitigating defamatory losses. Defendants are in control of their own publications, so they must be incentivized to act, but they cannot do so until they are adequately apprised of the publication at issue and its alleged defamatory nature as section 73.055 requires.

Additionally, the court of appeals’ rationale that the exemplary-damages and limitations clocks simultaneously expire fails to acknowledge other relevant provisions. The court reasoned that it would be nonsensical for a plaintiff only to lose exemplary damages even when the plaintiff possessed knowledge of that publication for more than ninety days or beyond the limitations period. 555 S.W.3d at 329. Although exemplary damages are the DMA's primary carrot and stick, defendants can also put on evidence of all material facts and circumstances that contribute to the plaintiff's claim for actual damages and any public apology, correction, or retraction of the libelous matter made and published by the defendant. Id. §§ 73.003(a)(1), (3), .061(b). As material circumstances bearing on the extent and source of the plaintiff's actual damages, a defendant can rely on evidence of a plaintiff's failure to provide a timely or sufficient request, failure to respond to a court's declaration that a provided request was noncompliant, or delay in providing a request. See id. § 73.003(a)(1).

In concluding that the DMA affords a defendant the right to dismissal for a plaintiff's failure to provide a request within the limitations period, the court of appeals neutered the statute's intentional scheme, which facilitates the exchange of information with the goal of obtaining a change to the underlying defamatory statement—the true source of the plaintiff's damages. Id. § 73.052 ; see also id. § 73.051 (calling for a liberal construction to effectuate the DMA's purpose). Implying a right to dismissal for failure to provide notice before limitations has expired is not apparent from the statute's text and serves only to undermine the statute's expressly stated purpose of mitigating damages by providing an opportunity for the correction, clarification, or retraction of a defamatory statement. Id. § 73.052 ; see Mauzy v. Legislative Redistricting Bd. , 471 S.W.2d 570, 573 (Tex. 1971).

C

Today the Court does not reach a consensus on the main issue presented—whether the DMA requires dismissal of certain claims in a timely filed lawsuit for which the defendant has not received a sufficient request before limitations has expired. But that is only because the concurrence and dissent fail to give effect to the language the Legislature actually enacted. Contrary to the dissent's construction of the statute as precluding continuation of a suit when a request is untimely, Section 73.058(c) explicitly states a defendant must timely object to a request that is itself untimely. TEX. CIV. PRAC. & REM. CODE § 73.058(c). In doing so, the DMA expressly contemplates that absent such objection, a suit can indeed be "maintained" under the statute even though the request comes after limitations has expired. More significantly, even if a timely objection is made, Section 73.058(c) provides a remedy that—notably—is not dismissal. Id.

Under Section 73.058(c), if a defendant elects to challenge the request, it may file a "motion to declare the request insufficient or untimely." Id. If a court agrees, then a defendant will receive a "declar[ation]" to that effect. Id. The DMA, however, does not state that the defendant will obtain dismissal. Compare id., with id. § 74.351(b)(2) (providing the right to "dismiss[ ]" a health care liability claim against a physician or health care provider for a plaintiff's failure to provide an expert report), and id. § 90.007(a), (c) (defendant's right to "file a motion to dismiss" asbestos-or silica-related claims for failure to receive certain reports). As the old maxim goes, the Legislature does not hide elephants in mouseholes, see Whitman v. American Trucking Ass'ns , 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001), and it certainly does not provide an express remedy when it means to imply another significantly more severe one. If, as the dissent says, limitations is the point of no return, the Legislature's requirement of a timely objection to timeliness would be unnecessary.⁴ The dissent does not explain how Section 73.058(c) ’s requirement of a timely objection to timeliness remains viable under its view of the statute as mandating dismissal once limitations has expired.

4 The dissent additionally renders as surplusage Section 73.062(a) ’s permissive challenge to whether a written request was received. See PlainsCapital Bank v. Martin , 459 S.W.3d 550, 556 (Tex. 2015). The abatement provision provides a means for a defendant to receive a written request through the abatement process if the defendant files a timely plea in abatement. Tex. Civ. Prac. & Rem. Code § 73.062(a). However, under the dissent's construction of the statute, a defendant would never rely on the abatement provision, or Section 73.058(c) ’s objection requirement, when the defendant could simply move to dismiss.

Similarly, the concurrence engrafts a dismissal remedy by stating that an action can be maintained only if a request is made within the limitations period, post at ––––, and that a defendant is entitled to dismissal if it timely objects to receipt of a timely request, post at ––––. The concurrence confuses what is sufficient with what is necessary. Section 73.055(b) states that a request "is timely if made during the period of limitation for commencement of an action for defamation." TEX. CIV. PRAC. & REM. CODE § 73.055(b). That is, for timeliness purposes under the DMA, it is sufficient that a plaintiff provides a compliant request within the limitations period to "maintain" the suit. But because a written request that is either not served within the limitations period or insufficient in some other respect triggers the DMA's abatement provision after suit is filed, a written request provided in response to a plea in abatement is also statutorily compliant such that the plaintiff may "maintain" the suit.⁵ In construing abatement as nugatory once limitations has expired, the concurrence makes necessary what the statute says is sufficient.

5 If the abatement process is not timely invoked, the defendant cannot complain that it has not received a request as required by Section 73.055. See Tex. Civ. Prac. & Rem. Code § 73.062(a) (defendant may file plea in abatement within thirty days of filing its original answer).

Moreover, the concurrence interlineates a remedy that is neither stated nor contemplated by Section 73.058(c) ’s objection provision—dismissal—despite the statute's express statement that a timely objection to a noncompliant request only entitles a defendant to a declaration. Id. § 73.058(c). This approach fails to acknowledge Section 73.058(c) ’s function. A "declar[ation]" under this section forces a plaintiff to act, if it can, to preserve the possibility of exemplary damages. Id. § 73.055(c) (loss of exemplary damages for failure to make a request within ninety days of obtaining knowledge of the defamatory statement). It also forces the plaintiff to take additional measures that can be considered in determining whether and to what extent a plaintiff's damages emanate from the defamatory publication or from the plaintiff's failure to promptly take mitigatory measures. Specifically, in aiding the assessment of actual damages arising from a defamatory publication, a defendant can provide all material facts and circumstances that contribute to a plaintiff's claim for actual damages. Id. §§ 73.003(a)(1), .061(b). Thus, a Section 73.058 declaration is not only a means of informing the plaintiff that the defendant lacks what the statute contemplates, but it also can operate to bar the plaintiff from obtaining exemplary damages and as evidence of the plaintiff's contribution to its own damages. Thus, by recognizing a remedy Section 73.058(c) does not authorize, the concurrence overlooks the function Section 73.058(c) actually serves.

In drawing inferences about the Legislature's supposed intent, both the concurrence and the dissent fail to construe the phrase "maintain ... only if" within the statute's context. It is not our role to speculate on the Legislature's purpose, but instead to give meaning to every word in a statute, harmonizing each provision. McIntyre v. Ramirez , 109 S.W.3d 741, 745 (Tex. 2003) ("[W]e will not give an undefined statutory term a meaning that is out of harmony or inconsistent with other provisions in the statute."); State v. Standard Oil Co. , 130 Tex. 313, 107 S.W.2d 550, 559 (1937) ("We are to interpret the language used in a manner to make all relevant laws [ ] harmonious...."). When interpreting terms in a statute, that context necessarily includes the Legislature's codified purpose. ANTONIN SCALIA & BRYAN A. GARNER , READING LAW: THE INTERPRETATION OF LEGAL TEXTS 68 ("[W]ords are given meaning by their context, and context includes the purpose of the text."); see Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n , 518 S.W.3d 318, 354–55 (Tex. 2017) (Willett, J., dissenting) ("When legislators articulate an explicit purpose in the very words of the statute, the Court need not—and should not—speculate."). By inferring an unstated dismissal right under the DMA, the concurrence and the dissent ignore the Legislature's codified purpose: "to provide 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 § 73.052. An unwary victim is left without an opportunity to "mitigate any perceived damage or injury" or recourse to compel a tortfeasor to correct the public record. Id.

D

Zoanni lastly contends the statute's abatement process was not available to her with respect to the nine statements added in the seventh amended petition because the statutory deadline for invoking that process had already passed when the amended petition was filed. The defendant's right to file a plea in abatement extends to "the 30th day after the date the [defendant] files an original answer in the court in which the suit is pending." Id. § 73.062(a) (emphasis added). Zoanni argues that "original answer" refers only to the first answer in the case and that her right to seek an abatement under the statute accordingly ended thirty days after that first answer was filed. Ironically, Zoanni titled her response to the seventh amended petition, which challenged the nine additional defamation claims, as an original answer. But titles aside, she maintains that only the first original answer in the case triggers the DMA's deadline for invoking the abatement process.

Zoanni's position ignores our procedural rules and the DMA's language. Under the rules of procedure, a plaintiff may amend an original petition throughout the pretrial process. See TEX. R. CIV. P. 63. Each amendment that raises a new claim presents an opportunity, and sometimes an obligation, for the defendant to answer. See id. 62. Each initial answer to a newly alleged claim represents "an original answer" to that claim. The statute makes this distinction clear by not limiting the plea-in-abatement window to thirty days following a defendant filing "the" original answer but instead to thirty days following the filing of "an" original answer. See TEX. CIV. PRAC. & REM. CODE § 73.062(a).

Second and similarly, the abatement right is provided to "a person against whom a suit is pending." Id. A suit is not pending only when it originates or is filed; a lawsuit is pending throughout its duration until it is resolved. Pending , BLACK'S LAW DICTIONARY (11th ed. 2019) ("Remaining undecided; awaiting decision."). Zoanni's position suggests that it is the filing of a lawsuit that triggers the right to abatement, but it is instead the failure of a plaintiff to provide the "written request for a correction, clarification, or retraction as required by Section 73.055" for alleged defamatory statements that triggers the right to abatement. TEX. CIV. PRAC. & REM. CODE § 73.062(a) ; see also id. § 73.055(d)(3) (enumerating that a sufficient request must state with particularity the alleged defamatory statement). As a plaintiff amends his petition to include newly alleged defamatory statements, each of which is a separate claim for defamation, see Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc. , 219 S.W.3d 563, 587 (Tex. App.—Austin 2007, pet. denied) ; Akin v. Santa Clara Land Co. , 34 S.W.3d 334, 340–41 (Tex. App.—San Antonio 2000, pet. denied) ; Marshall Field Stores, Inc. v. Gardiner , 859 S.W.2d 391, 394–96 (Tex. App.—Houston [1st Dist.] 1993, writ dism'd w.o.j.) ; Fisher v. Beach , 671 S.W.2d 63, 67 (Tex. App.—Dallas 1984, no writ), those newly added claims can trigger the defendant's right to abatement if they are not in the subject of a sufficient request, the plaintiff has no proof they were in the subject of a prior sufficient request, and the defendant has made no change to the statements.⁶

6 Because a majority of the Court holds that dismissal is not required even if Hogan's newly added statements do not relate back to his original request, we need not consider whether they do.

A majority of the Court agrees that Zoanni elected not to seek an abatement, which was available to her when Hogan filed his seventh amended petition. Post at –––– (Boyd, J., concurring). Rather, she sought dismissal, claiming Hogan had not provided a timely or sufficient request for the nine newly added claims. The right to seek an abatement is permissive, and a defendant may waive the right if not pursued. Although Zoanni had the right to seek abatement after Hogan filed his seventh amended petition adding the nine new claims, she elected not to pursue that remedy. Zoanni also rejected the trial court's subsequent offer to abate the suit for her to receive the statutory request. She accordingly has waived that remedy along with the opportunity to receive the statutory request.

IV. Conclusion

The plain language and purpose of the DMA afford a defendant a time-limited right to a plea in abatement if a timely and sufficient request is not provided by the plaintiff. If a plaintiff fails to provide the necessary request and a defendant timely files a plea in abatement, the suit must abate until the plaintiff responds with a written request. TEX. CIV. PRAC. & REM. CODE § 73.062(c). The plain language of the statute does not support a right to dismissal for failing to provide a sufficient request before the statute of limitations expires. Because Zoanni sought to have the newly added claims dismissed, rather than abated, to remedy the plaintiff's alleged failure to provide a sufficient request, she waived any complaints about defective notice. Accordingly, we reverse the court of appeals’ judgment and remand the case to that court for consideration of Zoanni's remaining issues.⁷

7 The court of appeals has yet to address Zoanni's assertions that (1) "the trial court erroneously failed to submit a mitigation instruction on damages, the damages award is not supported by sufficient evidence, and the award is too large and impermissibly includes punitive damages"; (2) "part of the judgment improperly penalizes Zoanni for her opinions"; (3) "there is not legally sufficient evidence that Zoanni published any of the complained-of police report statements"; and (4) "the trial court erroneously excluded testimony based upon the clergy privilege." 555 S.W.3d at 325.

Justice Boyd filed a concurring opinion.

Chief Justice Hecht filed a dissenting opinion, in which Justice Blacklock and Justice Huddle joined.

Justice Bland did not participate in the decision.

Justice Boyd, concurring.

As we've noted before, it's "at least theoretically possible that legislators—like judges or anyone else—may make a mistake."^{1 1} Unfortunately, the Texas Defamation Mitigation Act (DMA)^{2 2} may very well prove the point. But if so, we are "not empowered to ‘fix’ the mistake."^{3 3} Instead, we must do our best to construe and apply the DMA as written. The Court makes a valiant effort, but its reading contravenes three fundamental rules that guide our construction of statutes: it disregards the common, ordinary meaning of undefined terms, it overlooks the statute's use of different words in different provisions, and it renders some provisions completely superfluous and meaningless. The dissenting opinion also makes a valiant effort, but its reading also overlooks the use of different words in different provisions and renders some provisions meaningless. Under the facts of this case, the Court ultimately reaches the right result, but its reasoning distorts the DMA's provisions and thus alters its effect in future cases. I join in the Court's judgment but respectfully cannot join the reasoning expressed in its opinion.

1 Brown v. De La Cruz , 156 S.W.3d 560, 566 (Tex. 2004).

1 Tex. Civ. Prac. & Rem. Code §§ 73.051 –73.062.

2 Tex. Civ. Prac. & Rem. Code §§ 73.051 –.062.

2 Id. § 73.055(a) (emphases added).

3 Tex. Lottery Comm'n v. First State Bank of DeQueen , 325 S.W.3d 628, 638 (Tex. 2010).

3 See ante at 168-69 (quoting Sunstate Equip. Co. v. Hegar , 601 S.W.3d 685, 689–690 (Tex. 2020) ).

I.

The DMA and the Uniform Model Act

To understand the problem we address in this case, it is helpful to begin with an understanding of the uniform model act on which the DMA is based.^{4 4} Like the model act, the DMA's stated purpose is "to provide a method for a person who has been defamed by a publication or broadcast to mitigate any perceived damage or injury."^{5 5} But the revisions the Texas Legislature made when it adopted the model act make it difficult to determine the method the legislature intended to provide.

4 See H. Comm. on Judiciary & Civil Jurisprudence, Bill Analysis , Tex. H.B. 1759, 83d Leg., R.S., No. 83R 23145, at 1 (2013), available at https://capitol.texas.gov/tlodocs/83R/analysis/pdf/HB01759H.pdf#navpanes=0.

4 Ante at 168.

5 Tex. Civ. Prac. & Rem. Code § 73.052.

5 Lewis Carroll, Through the Looking-Glass , ch. VI, at 163 (W.W. Norton & Co. 1971), quoted in Robinson v. Cent. Tex. Mental Health & Mental Retardation Ctr. , 780 S.W.2d 169, 176 (Tex. 1989) (Hecht, J., dissenting from the Court's interpreting "use" in the Texas Tort Claims Act to mean "non-use").

The uniform model act on which the DMA is based is called the Uniform Correction or Clarification of Defamation Act (UCCDA).^{6 6} The Uniform Law Commission adopted the UCCDA in 1993 as a last-ditch effort to salvage part of the commission's extended, yet ultimately unsuccessful, effort to offer a much broader Uniform Defamation Act.^{7 7} Despite the commission's efforts, however, the UCCDA has been a "colossal flop."⁸ After nearly thirty years, only three states—Texas, North Dakota, and Washington—have enacted the UCCDA in any form.⁹

6 See Uniform Correction or Clarification of Defamation Act, 12 U.L.A. 291 (1996) [hereinafter UCCDA], available at https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=0454cc22-7d14-a685-c361-f0b12ee83318 & forceDialog=0.

6 Id. at 164 (Alice's response), quoted in Robinson , 780 S.W.2d at 176 n.4 (Hecht, J., dissenting).

7 Cynthia Nance, The Uniform Correction or Clarification of Defamation Act: How Not to Reform Arkansas Defamation Law , 51 Ark. L. Rev. 721, 722 (1998) [hereafter Arkansas Defamation Law ].

7 Ante at 183 (Boyd, J., concurring) ("I agree with the dissenting Justices that, under common, ordinary usage, a legal action that cannot be ‘maintained’ must be dismissed.").

8 Richard J. Peltz-Steele, The New American Privacy , 44 Geo. J. Int'l L. 365, 390 (2013).

9 See Enactment Map of Uniform Correction or Clarification of Defamation Act , Uniform Law Commission , https://www.uniformlaws.org/committees/community-home?CommunityKey=6ba5d1ed-8924-48aa-81e9-1ed0f7a9f47d (last visited May 27, 2021); see also N.D. Cent. Code §§ 32-43-01 –32-43-10 ; Wash. Rev. Code §§ 7.96.010 –.901. Other states have enacted similar statutes, but instead of using the UCCDA's "may maintain an action only if" language, they simply limit the damages a plaintiff who fails to mitigate can recover. See, e.g. , Cal. Civ. Code § 48a (providing that a defamation plaintiff "shall only recover special damages unless a correction is demanded and is not published or broadcast, as provided in this section"); Conn. Gen. Stat. § 52-237 (providing that, absent proof of "malice in fact," a plaintiff may recover "only actual damage" unless the "defendant, after having been requested by the plaintiff in writing to retract the libelous charge, ... failed to do so within a reasonable time"); Fla. Stat. § 770.02 (providing that a plaintiff "shall recover only actual damages" if the defendant timely made "a full and fair correction, apology, or retraction"); Ga. Code § 51-5-11 (providing that defendant who timely made a retraction in response to plaintiff's timely request "shall be liable only to pay actual damages"); Mass. Gen. Laws ch. 231, § 93 (providing that plaintiff "shall recover only for any actual damage sustained" if defendant "publishes a reasonable retraction"); Minn. Stat. § 548.06 (providing that plaintiff "shall recover no more than special damages, unless a retraction be demanded and refused as hereinafter provided").

Like the UCCDA, all three state statutes (including the Texas DMA) provide that a plaintiff "may maintain an action for defamation only if" (1) the plaintiff has made a timely and sufficient (or "adequate") request for correction or clarification from the defendant (a Request), or (2) without having received a Request, the defendant has voluntarily made a correction or clarification (a Correction).¹⁰ If a defendant "intends to challenge" the timeliness or sufficiency of a Request, the defendant must raise that challenge by filing a motion within sixty days after service of citation.¹¹ If a defendant successfully challenges a Request's timeliness or sufficiency, the plaintiff cannot "maintain an action for defamation." The commission, courts in other states, and commentators have consistently agreed that if the plaintiff cannot "maintain the action," the claim cannot be filed, or if already filed, must be dismissed.¹²

10 See UCCDA § 3(a) ; N.D. Cent. Code § 32-43-03 ; Tex. Civ. Prac. & Rem. Code § 73.055(a) ; Wash. Rev. Code § 7.96.040. Each of the states made minor revisions when adopting the UCCDA. Washington, for example, added a reference to "an action for defamation or another claim covered by this chapter. " Wash. Rev. Code § 7.96.040 (emphasis added). And Texas used the word "sufficient" where the UCCDA used "adequate" and added a reference to a "retraction" in addition to a "correction" or "clarification." Compare Tex. Civ. Prac. & Rem. Code § 73.055(a), with UCCDA § 3(a).

11 UCCDA § 7(b) ; see also Tex. Civ. Prac. & Rem. Code § 73.058(c).

12 See UCCDA § 3 cmt. (referring to the "preclusive effect" of an inadequate Request or the failure to make any Request); In re Disciplinary Action Against Dvorak , 611 N.W.2d 147, 150 (N.D. 2000) (stating Request "was a predicate requirement to maintaining [the defamation] action"); Momou v. Case New Holland , No. 3:09-cv-15, 2010 WL 11627668, at *6 (D.N.D. Jan. 19, 2010) (stating plaintiff who has not made a timely Request cannot "file a claim for defamation"); Snook v. Whatcom Humane Soc'y , No. C18-313 RSM, 2018 WL 3752221, at *2–3 (W.D. Wash. Aug. 8, 2018) (dismissing claims for failure to make an adequate Request); Jane E. Kirtley, Uncommon Law: The Past, Present and Future of Libel Law in A Time of "Fake News" and "Enemies of the American People," 2020 U. Chi. Legal F. 117, 122 (2020) (characterizing Request as a "prerequisite to a libel suit"); Arkansas Defamation Law, supra note 7, at 743 ("The right to sue under the UCCDA hinges upon the issuance of, or request for, a correction or clarification.").

But "to avoid technical requirements that can often serve as traps for unwary plaintiffs," the commission included a provision in the UCCDA that expressly allows a plaintiff's lawsuit to serve as the required Request.¹³ Because a Request is "timely if made within the period of limitation for commencement of an action for defamation,"¹⁴ a timely filed complaint (or petition, in Texas parlance) "will always serve as a timely request for correction or clarification."¹⁵ And—at least, in the commission's view—normal pleading rules should apply and allow the plaintiff "to amend a complaint that fails to contain the information required" to make the Request sufficient.¹⁶ By allowing the plaintiff's original pleading to serve as a timely Request and then allowing the plaintiff to amend the pleading to add any information necessary to make the Request sufficient, the UCCDA allows a plaintiff who files suit before limitations expires but without first making a Request to avoid dismissal, while still promoting "the Act's purpose of resolving or limiting defamation disputes prior to litigation."¹⁷

13 UCCDA § 3(d) & cmt.

14 Id. § 3(b) ; see also Tex. Civ. Prac. & Rem. Code § 73.055(b).

15 UCCDA § 3 cmt.

16 Id.

17 Id.

The Texas Legislature, however, chose to omit the UCCDA's provision that expressly allows the plaintiff's pleading to constitute a Request.¹⁸ Instead, the legislature added a new provision—which neither the UCCDA nor any other state's law includes—that allows a defendant "who does not receive a written [R]equest for a correction, clarification, or retraction, as required by Section 73.055," to "file a plea in abatement not later than the 30th day after the date the [defendant] files an original answer in the court in which the suit is pending."¹⁹ Apparently inspired by a nearly identical provision of the Texas Deceptive Trade Practices-Consumer Protection Act, the DMA allows a defendant "who does not receive a written [R]equest " to force the plaintiff to make a written Request by abating the lawsuit until the plaintiff does so.²⁰

18 Compare Tex. Civ. Prac. & Rem. Code § 73.055, with UCCDA § 3(d).

19 Tex. Civ. Prac. & Rem. Code § 73.062(a) (emphasis added). The bill as originally introduced did not include the abatement provision, but the House Committee added the provision to the Committee's substitute bill. Compare Tex. H.B. 1759, 83rd Reg. Sess. (2013) (as introduced), available at https://capitol.texas.gov/tlodocs/83R/billtext/pdf/HB01759I.pdf#navpanes=0, with Tex. C.S.H.B. 1759, 83d Reg. Sess. (2013) (committee substitute), available at https://capitol.texas.gov/tlodocs/83R/billtext/pdf/HB01759H.pdf#navpanes=0; see also Mark C. Walker, The Essential Guide to the Texas Anti-SLAPP Law, the Texas Defamation Mitigation Act, and Rule 91a , 91 The Advoc. ( Texas ) 280, 336 (2020) ("The Committee revised the bill, adding an abatement section that outlines a procedure for publishers to file a plea in abatement if a written request for a correction, clarification, or retraction is not received.").

20 Compare Tex. Civ. Prac. & Rem. Code § 73.062, with Tex. Bus. & Com. Code § 17.505(c) –(e).

But the DMA's abatement provision says the defendant "may" file a plea in abatement; it does not require a defendant who has not received a written Request to seek abatement.²¹ And as explained, a plaintiff who has failed to make a timely and sufficient Request cannot "maintain" the defamation action unless the defendant has voluntarily made a Correction without having received a Request.²² So the issue is: what are the rights of a defendant who has not voluntarily made a Correction when (1) the plaintiff files suit without having made any written Request or (2) the plaintiff files suit after making a written Request but the Request was insufficient or untimely? Is abatement the defendant's only remedy in both situations because section 73.062(a) says a defendant who did "not receive a written [R]equest as required by Section 73.055" may file a plea in abatement? Or can the defendant demand dismissal in both situations because section 73.055(a) says the plaintiff cannot "maintain" the action? Or does the outcome depend on which of the two circumstances occurs; that is, does it depend on whether the plaintiff made a written Request that was insufficient or untimely or the plaintiff failed to make any written Request at all?

21 Tex. Civ. Prac. & Rem. Code § 73.062(a) (providing that defendant "may file a plea in abatement") (emphasis added).

22 Id. § 73.055(a).

Writing for the Court's plurality, JUSTICE DEVINE would hold that section 73.055(a) ’s statement that a plaintiff "may maintain an action for defamation only if" does not mean the action "must be dismissed unless." Ante at ––––. Instead, concluding that section 73.062(a) ’s abatement provision informs the meaning of section 73.055(a) ’s statement that the plaintiff cannot "maintain" the action, the plurality would hold that abatement is the only available remedy when a plaintiff files suit after serving a written Request that was insufficient or untimely or without having served any written Request at all. Ante at ––––. Writing for the dissenting Justices, the CHIEF JUSTICE would hold that section 73.055(a) ’s "maintain ... only if" language plainly means the claims "must be dismissed unless," and thus requires the claims to be dismissed if the plaintiff made a written Request that was insufficient or untimely or failed to make any written Request at all. Post at ––––. To accommodate section 73.062(a) ’s abatement provision, the dissenting Justices would hold that the defendant can choose between abatement and dismissal if the plaintiff made a written Request that was insufficient but timely, but only if there's still time for the plaintiff to make a sufficient and timely Request. See post at ––––. Both readings, however, neglect key rules that govern our construction of statutes. We must give undefined words their common, ordinary meaning,²³ give meaning to the statute's use of different words in different provisions,²⁴ and ensure that no provision is rendered superfluous or meaningless.²⁵ Following these rules, I would hold that the DMA requires dismissal when the plaintiff files suit after making a "written [R]equest" that was otherwise insufficient or was untimely, and permits abatement when the plaintiff files suit without having made any "written [R]equest" at all.

23 Tex. State Bd. of Exam'rs of Marriage & Fam. Therapists v. Tex. Med. Ass'n , 511 S.W.3d 28, 34 (Tex. 2017) ("Because the statute and the rule do not define these key terms, we must apply their common, ordinary meaning unless a contrary meaning is apparent from the statute's language.").

24 Ineos USA, LLC v. Elmgren , 505 S.W.3d 555, 564 (Tex. 2016) ("[W]hen the legislature uses certain language in one part of the statute and different language in another, the [C]ourt assumes different meanings were intended." (quoting DeWitt v. Harris County , 904 S.W.2d 650, 653 (Tex. 1995), in turn quoting 2A Norman J. Singer , Sutherland Statutory Construction § 46.06 (5th ed. 1992))); see also Henson v. Santander Consumer USA Inc. , ––– U.S. ––––, 137 S. Ct. 1718, 1723, 198 L.Ed.2d 177 (2017) ("And, usually at least, when we're engaged in the business of interpreting statutes we presume differences in language like this convey differences in meaning.").

25 Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue , 271 S.W.3d 238, 256 (Tex. 2008) ("The Court must not interpret the statute in a manner that renders any part of the statute meaningless or superfluous.").

II.

The DMA Provisions

We must, of course, allow the statute's words to dictate the statute's meaning. On the issue this case presents, three of the DMA's provisions are crucial. The first is section 73.055(a) :

A person may maintain an action for defamation only if: (1) the person has made a timely and sufficient [R]equest ... from the defendant; or (2) the defendant has made a [C]orrection....^{[ 26 ]}

26 Tex. Civ. Prac. & Rem. Code § 73.055(a) (emphases added).

To be timely, the Request must be "made during the period of limitations for commencement of an action for defamation."²⁷ To be sufficient, the Request must be served on the defendant; must reasonably identify and be signed by the plaintiff (or the plaintiff's attorney or agent); must "state[ ] with particularity the statement alleged to be false and defamatory" and "the time and place of publication," if known; must explain why the statement was defamatory; and—importantly—must be "made in writing. "²⁸

27 Id. § 73.055(b).

28 Id. § 73.055(d) (emphasis added).

The second crucial provision is section 73.058(c) :

If a defendant intends to challenge the sufficiency or timeliness of a [R]equest ..., the defendant must state the challenge in a motion to declare the [R]equest insufficient or untimely served not later than the 60th day after the date of service of the citation.^{[ 29 ]}

29 Id. § 73.058(c) (emphases added).

Like section 73.055(a), this section expressly refers to the "sufficiency" and "timeliness" of a Request. It provides the procedure by which a defendant may challenge a Request as "insufficient or untimely," while section 73.055(a) provides that the plaintiff "may maintain an action" only if the plaintiff has made a "timely and sufficient" Request.

The third crucial provision is the abatement provision, section 73.062(a). In contrast to sections 73.055(a) and 73.058(c), this section expressly addresses a "written [R]equest" and says nothing at all about whether the Request was "timely" or "sufficient":

A person against whom a suit is pending who does not receive a written [R]equest ..., as required by Section 73.055, 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.^{[ 30 ]}

30 Id. § 73.062(a) (emphasis added).

Working through these provisions, we must first determine what section 73.055(a) means when it says a plaintiff may "maintain an action" only if the person made a timely and sufficient Request. Using the same language, section 73.058(c) says a defendant who intends to challenge "the sufficiency or timeliness" of a Request must file a motion to declare the Request "insufficient or untimely" within sixty days after service of citation. But section 73.062(a), the abatement provision, uses distinctly different language: it permits a defendant to file a plea in abatement if the defendant did not receive "a written [R]equest" and never says anything about the Request's timeliness or sufficiency. Both the Court's plurality and the dissenting Justices overlook this distinction and as a result, misconstrue the language and render other provisions meaningless.

A. "Maintain an action"

I agree with the dissenting Justices’ conclusion that the phrase "may maintain an action ... only if" means "must be dismissed unless." Because the DMA does not define the terms, we must apply their common, ordinary meaning unless the statutory context requires a different meaning.³¹ "To determine a statutory term's common, ordinary meaning, we typically look first to dictionary definitions and then consider the term's usage in other statutes, court decisions, and similar authorities."³²

31 Tex. State Bd. of Exam'rs of Marriage & Fam. Therapists , 511 S.W.3d at 34.

32 Id. at 35.

The Court's plurality relies on dictionaries that define the word "maintain" to mean "to keep in an existing state" or "to continue or preserve in."³³ Based on these definitions, the plurality concludes that a legal action that is abated is not being "maintained." But I don't find these definitions particularly helpful. A legal action that is abated may in one sense be in a different "existing state," but it is still existing and continuing—it is still being "maintained"—as a legal action. Instead of construing the verb "maintain" in isolation, we must construe it in context by considering its object, "an action." Addressing the phrase "maintain an action ," rather than the single word "maintain," the phrase refers to the act of filing a suit or of continuing a suit previously filed. Contrary to the plurality's assertion that whenever "the Legislature intends dismissal as the consequence for noncompliance, it clearly says so in the statute,"³⁴ Texas statutes consistently use the phrase "maintain an action" to address the plaintiff's ability to file a lawsuit or to continue one that has been filed.³⁵ And our own decisions have consistently used the phrase in the same way.³⁶ The Court's plurality conveniently ignores these statutes and opinions, which consistently illustrate that, under the common, ordinary meaning, an action that cannot be "maintained" must be dismissed. The plurality provides no examples in which a statute or one of our decisions equates abatement with the inability to "maintain an action," and I have found none. I agree with the dissenting Justices that, under common, ordinary usage, a legal action that cannot be "maintained" must be dismissed. B. Rendering other provisions meaningless

33 Ante at –––– (quoting Maintain , Merriam-Webster's New Collegiate Dictionary (8th ed. 1977)).

34 Ante at ––––.

35 See, e.g. , Tex. Bus. & Com. Code § 17.50(c) –(e) (stating conditions on which a plaintiff may "maintain an action" for deceptive trade practices); Tex. Bus. Org. Code §§ 9.051(b) (stating conditions on which a foreign filing entity may "maintain an action" in Texas courts), 22.362(a) (stating conditions on which nonprofit corporation that has forfeited its right to do business in Texas may "maintain an action" in Texas courts), 152.211(a), (b) (stating bases on which a general partnership and its partners may "maintain an action" against each other), .609(a) (same, involving "withdrawn" partner), .612(a) (same, involving partner's transferee), 153.309(a) (stating conditions on which a limited partnership that has forfeited its right to transact business in Texas may "maintain an action" in Texas courts); Tex. Civ. Prac. & Rem. Code §§ 16.028(a) (stating limitations period after which a property owner may not "maintain an action" for recovery of property), 17.028(d) (permitting financial institution that was not properly served with citation to "maintain an action" to set aside default judgment), 71.031(a) (permitting suit for death or injury occurring in foreign state or country if its laws permit plaintiff to "maintain an action" for the death or injury); Tex. Educ. Code § 132.121(a) (permitting person to "maintain an action" against proprietary career school or college); Tex. Fin. Code § 392.102 (permitting person to "maintain an action" against debt collector and its surety); Tex. Gov't. Code § 81.072(g) (stating attorney may not "maintain an action" against complainant or witness in disciplinary proceeding due to "absolute and unqualified" immunity); Tex. Hum. Res. Code § 121.004(b) (permitting person with disabilities to "maintain an action" for discrimination); Tex. Health & Safety Code §§ 171.014(b) (stating conditions under which a person may not "maintain an action" for partial-birth abortion), 241.054(d) (permitting attorney general, district attorney, or county attorney to "maintain an action" against hospital), 246.117(c) (stating conditions under which a person "may not file or maintain an action" against a continuing-care facility), 464.015(f) (permitting attorney general, district attorney, or county attorney to "maintain an action" against chemical-dependency facility), .017(e) (same, for action for civil penalty), 571.022(b) (same, for action against mental-illness facility), .023(d) (same, for action for civil penalty), 577.019(a) (permitting state to "maintain an action" against unlicensed mental-health facility), 611.007(c) (stating conditions under which a patient may not "maintain an action" against mental-health professional), 757.012(a) (permitting persons to "maintain an action" against property owner that fails to properly enclose swimming pool); Tex. Lab. Code § 101.023(b) (permitting persons to "maintain an action" for violation of anti-picketing statute); Tex. Local Gov't. Code § 232.008(f), (g) (permitting persons to "maintain an action" against person cancelling roadway or easement in subdivision); Tex. Nat. Res. Code § 52.325(a) (permitting state or lessee to "maintain an action" against permittee that fails to properly restore public school lands); Tex. Occ. Code §§ 1101.806(b), (c) (stating conditions on which a person may "maintain an action" for commission on real-estate sale), 1703.304 (stating conditions on which a person may "maintain an action" against polygraph examiner); Tex. Prop. Code § 64.060(c) (permitting assignee of rents to "maintain an action" against assignor); Tex. Water Code § 13.257(i) (stating conditions under which purchaser of real property located in utility-service provider's certificated service area may not "maintain an action").

36 See, e.g., Pike v. Tex. EMC Mgmt., LLC , 610 S.W.3d 763, 779 (Tex. 2020) (interpreting statute allowing partner to "maintain an action" as granting "authority to sue"); Vernco Constr., Inc. v. Nelson , 460 S.W.3d 145, 148 (Tex. 2015) (referring to party's "standing to maintain an action"); Env't Processing Sys., L.C. v. FPL Farming Ltd. , 457 S.W.3d 414, 425 (Tex. 2015) (stating plaintiff must establish wrongful entry upon land to "maintain an action" for trespass); Jaster v. Comet II Const., Inc. , 438 S.W.3d 556, 564 (Tex. 2014) (plurality op.) (stating that "the right to maintain an action depends upon the existence of a cause of action") (quoting Bell v. Moores , 832 S.W.2d 749, 752 (Tex. App.—Houston [14th Dist.] 1992, writ denied) ); In re Labatt Food Serv., L.P. , 279 S.W.3d 640, 645 (Tex. 2009) (orig. proceeding) (stating wrongful-death beneficiaries may bring suit only "if the decedent would have been entitled to maintain an action for the injury"); Nobles v. Marcus , 533 S.W.2d 923, 925 (Tex. 1976) (stating creditor who pleads fraudulent conveyance may "maintain an action" to vacate the conveyance); Yett v. Cook , 115 Tex. 205, 281 S.W. 837, 841 (1926) (stating party must have a justiciable interest to "maintain an action").

The dilemma this case presents arises from the legislature's replacement of the model act's provision allowing a lawsuit to serve as the required Request with section 73.062(a) ’s provision allowing a defendant who has not received "a written [R]equest" to file a plea in abatement. If the abatement provision and section 73.055(a) ’s statement that an action cannot be "maintained" both address the same circumstances, the abatement provision becomes essentially meaningless because a defendant will almost certainly choose dismissal over abatement. The Court's plurality resolves this dilemma by holding that "maintain an action ... only if" means "must be abated unless," so that abatement is the statute's only remedy when a plaintiff files suit after making a written Request that was untimely or insufficient or without having made any written Request at all. But by reading the abatement provision as the only remedy for a plaintiff's failure to make a timely and sufficient Request, the plurality renders other DMA provisions meaningless.

As explained, the abatement provision states that a defendant "against whom a suit is pending who does not receive a written [R]equest ..., as required by Section 73.055, 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."³⁷ If (as the Court's plurality concludes) this provision offers the only remedy when a plaintiff fails to make a timely and sufficient Request, then section 73.055(a) (which provides that a plaintiff can "maintain an action" only if the plaintiff makes a timely and sufficient Request) adds no meaning to the statute at all. If we deleted section 73.055(a) completely, the statute would still mean exactly what the Court's plurality says it means.

37 Tex. Civ. Prac. & Rem. Code § 73.062(a).

And section 73.058(c) (which requires a defendant who intends to challenge an untimely or insufficient Request to file a motion within sixty days after service of citation) is worse than meaningless—it conflicts with the abatement provision. Under the plurality's reading, a defendant who desires to challenge the sufficiency or timeliness of a Request must file a motion within sixty days after service of citation (under section 73.058(c) ) and may file a plea in abatement within thirty days after filing its original answer (under section 73.062(a) ). But if, as the plurality concludes, the defendant's only remedy is abatement, then section 73.062(a) controls and section 73.058(c) is inconsistent and rendered meaningless. The plurality makes no effort to explain when, under its construction, section 73.058(c) would ever apply.

And finally, the Court's plurality's construction renders the statute's timeliness requirement completely meaningless. A Request is timely only "if made during the period of limitation."³⁸ Obviously, if a plaintiff makes an untimely Request before filing suit, abatement would be inappropriate because the suit must be dismissed based on limitations. But if the plaintiff makes an untimely Request after having timely filed suit, abatement would still be inappropriate because the plaintiff can never make a timely Request. To avoid this result, the Court's plurality suggests that section 73.062 somehow "contemplates the possibility" that a plaintiff can make a timely Request "beyond the limitations period,"³⁹ but it points to nothing in the statute that even suggests that possibility. Inexplicably, the plurality acknowledges that the statute says a Request "is timely" only if made during the limitations period, but then it says a Request "served beyond the limitations period" is not "noncompliant."⁴⁰ More inexplicably, the plurality reasons that serving the Request before limitations expires is "sufficient" to make the Request timely but not "necessary" to make the Request timely.⁴¹ So according to the plurality, a Request is timely whether filed before or after limitations expires, which means, of course, that the timeliness requirement has no meaning at all.

38 Id. § 73.055(b).

39 Ante at –––– (citing Tex. Civ. Prac. & Rem. Code § 73.062(a) –(c) ).

40 Ante at –––– (citing Tex. Civ. Prac. & Rem. Code § 73.062(a) –(c) ).

41 Ante at ––––.

C. Different language in different provisions

The fault in the plurality's approach is its failure to acknowledge that sections 73.055(a) and 73.058(c) use different language than section 73.062(a) and thus apply to different situations. Comparing these provisions and giving effect to their different language, I conclude section 73.062(a) provides for abatement only when the plaintiff files suit without having made any written Request at all , and only if the plaintiff can still make a timely and sufficient Request during an abatement period.

As mentioned, section 73.055(a) states that a plaintiff can "maintain an action for defamation only if" the plaintiff "has made a timely and sufficient [R]equest."⁴² To state the obvious, this section requires the plaintiff to make a Request and requires that the Request be timely and sufficient. Using the same language, section 73.058(c) states that a defendant may challenge "the sufficiency or timeliness of a [R]equest" by filing a "motion to declare the [R]equest insufficient or untimely. "⁴³ It does not state that the defendant may challenge "the plaintiff's failure to make a Request" by filing a "motion to declare that the plaintiff failed to make a Request." Instead, it presumes that the plaintiff has made a Request but the defendant "intends to challenge" the Request as insufficient or untimely. Section 73.058(c) thus does not apply when the plaintiff has failed to make any Request at all. Instead, it applies only when the plaintiff has made a Request but the defendant believes the Request was insufficient or untimely. If the court agrees that the Request was insufficient or untimely, then under section 73.055(a), the plaintiff cannot "maintain [the] action" and it must be dismissed.

42 Tex. Civ. Prac. & Rem. Code § 73.055(a) (emphasis added).

43 Id. § 73.058(c) (emphases added).

In clear contrast to sections 73.055(a) and 73.058(c), section 73.062(a) does not state that abatement is available when the plaintiff made an "untimely or insufficient " Request. Instead, it makes abatement available when the defendant does not "receive a written [R]equest ..., as required by Section 73.055."⁴⁴ As mentioned, to be "sufficient," a Request must satisfy several requirements, one of which is that it must be "made in writing."⁴⁵ Section 73.062 focuses only on that one sufficiency requirement, repeatedly referring to a "written" Request. A defendant "who does not receive a written [R]equest " may file a plea in abatement.⁴⁶ The abatement is automatic if the plea is verified and alleges that the defendant "did not receive the written [R]equest as required by Section 73.055."⁴⁷ The abatement under section 73.062(b) continues until the sixtieth day "after the date that the written [R]equest is served."⁴⁸ Section 73.062 never once refers to "untimeliness" or "insufficiency."

44 Id. § 73.062(a) (emphasis added).

45 Id. § 73.055(d) (stating that a Request is sufficient if it is served on the defendant, is made in writing, reasonably identifies the plaintiff, identifies the plaintiff or the plaintiff's attorney or agent, and adequately identifies the allegedly defamatory statements and their alleged defamatory meaning).

46 Id. § 73.062(a) (emphasis added).

47 Id. § 73.062(b)(1) (emphasis added).

48 Id. § 73.062(c) (emphasis added).

Nevertheless, the Court's plurality concludes that section 73.062 impliedly refers to a Request that is "timely and sufficient" because it refers to a "written [R]equest ..., as required by Section 73.055. "⁴⁹ Because section 73.055 requires a Request that is timely and sufficient, the plurality reads "as required by section 73.055" to mean a timely and sufficient Request. So the plurality construes section 73.062 to make abatement available not only when the defendant does not receive a "written [R]equest," but also when the defendant receives a written Request but the written Request was untimely or otherwise insufficient. I find this construction flawed for two reasons.

49 Ante at ––––; see also Tex. Civ. Prac. & Rem. Code § 73.062(a).

First, as mentioned, section 73.055 requires both that the plaintiff make a Request and that the Request be timely and sufficient. And to be sufficient, the Request must be "made in writing." So section 73.055 requires the plaintiff to make a "written [R]equest," and that's the only requirement of section 73.055 to which section 73.062 refers. Section 73.062 makes no reference to timeliness or sufficiency. It does not refer to any sufficiency requirement other than that the Request be written, and it does not refer in any way to the requirement that the Request be timely. If, as the Court's plurality concludes, "as required by section 73.055" means "timely and sufficient," section 73.062 ’s use of the word "written" to describe the Request is completely meaningless because a Request must be written to be sufficient. It's like saying a defendant could seek abatement if the plaintiff failed to make "a written Request that is in writing." To mean what the plurality says it means, section 73.062(a) should provide for abatement when the defendant does not receive "a timely and sufficient Request, as required by section 73.055." Instead, it refers only to a "written [R]equest, ... as required by section 73.055," without making any reference at all to whether the Request was timely or sufficient. The plurality disregards this distinctly different language without explaining any basis for doing so.

And second, if the phrase "as required by section 73.055" means that abatement is available when the plaintiff makes a written Request but the written Request is untimely or otherwise insufficient, then section 73.062(c) —which provides that the abatement "continues until the 60th day after the date that the written [R]equest is served" on the defendant⁵⁰ —must also refer to a Request that is timely and sufficient. But that would mean that abatement continues until the plaintiff makes a Request that is both sufficient and timely. And of course, if a plaintiff made an untimely Request, abating the case until the plaintiff makes a timely Request is useless, because the plaintiff could never make a timely Request. Unless we erroneously negate the timeliness requirement altogether, as the Court's plurality is forced to do, the abatement period will never end.

50 Tex. Civ. Prac. & Rem. Code § 73.062(c) (emphasis added).

Reading section 73.062(a) ’s language within the context of the distinctly different language of section 73.055(a) and 73.058(c), I conclude that if the plaintiff has made a written Request but the defendant believes the Request was insufficient or untimely, section 73.058(c) permits the defendant to challenge the Request in a motion to declare it insufficient or untimely. If the court "declares" that the Request was insufficient or untimely, then under section 73.055(a), the plaintiff cannot "maintain" the action and the court must dismiss it. Section 73.062(a), meanwhile, applies when the plaintiff has filed suit without having made any written Request at all. In that circumstance, instead of adopting the UCCDA's provision allowing the plaintiff's pleading to serve as a written Request, the legislature added section 73.062, permitting the defendant to seek abatement to require the plaintiff to make a written Request. But if limitations has expired or expires before the plaintiff makes a written Request in response to the defendant's abatement plea, abatement would be useless, and the court should dismiss the action under section 73.055(a) because the plaintiff can never make a timely Request.

D. Purpose

Finally, I'm not convinced by the Court's plurality's assertion that its construction promotes the DMA's purpose of "providing plaintiffs a method to mitigate perceived damage or injury" by obtaining a Correction and that "[h]olding otherwise" would be "antithetical" to that purpose.⁵¹ Like the dissenting JUSTICES, I adhere firmly to the principle that a statute's purpose cannot trump its language. See post at ––––. And even if the DMA's purpose mattered, mitigation is meaningful only when it occurs as quickly after the wrongful conduct as possible. The UCCDA, in fact, "is intended to encourage early corrections or clarifications."⁵² Requiring dismissal when a plaintiff fails to make a Request before limitations expires promotes that purpose. Construing the statute so that it does not require a timely Request at all does not.

51 Ante at ––––.

52 UCCDA § 3 cmt. (emphasis added).

III.

Hogan's Claims

Applying the statute to this case, I agree with the Court's plurality that section 73.062(a) ’s abatement provision applies to Hogan's claims. On March 7, 2014, Hogan sent a written Request to Zoanni, sufficiently identifying three allegedly defamatory statements.⁵³ Twenty days later, on March 27, 2014, Hogan timely filed this suit against Zoanni, asserting defamation claims based on the statements identified in his Request. Hogan thus made a timely Request that was sufficient as to the three allegedly defamatory statements, as section 73.055(a) requires.

53 Zoanni acknowledged "[o]ut of an abundance of caution, common courtesy, [and] to give opposing counsel the benefit of the doubt," that the letter also identified a fourth statement. She later "independently corrected" that statement. 555 S.W.3d 321, 324 (Tex. App.—Houston [1st Dist.] 2018).

But two years later, on April 15, 2016, Hogan filed an amended petition alleging Zoanni also defamed Hogan through nine additional statements. Hogan never made any written Request that identified these nine statements. Ten days later, when the trial began on April 25, 2016, Zoanni moved for a directed verdict on the claims based on the nine new statements, arguing that Hogan could not "maintain" that action because he had not made a timely and sufficient Request as to those nine statements. But as to those nine statements, Hogan never made any written Request at all before he filed his amended petition asserting claims based on those statements. The trial court denied Zoanni's dismissal motion, and the jury found her liable based on all of the allegedly defamatory statements. The court of appeals reversed, holding that Hogan cannot recover based on the nine additional statements because he never made a Request as to those statements. And because it is impossible to determine how the jury calculated damages based on the nine additional statements, the court remanded for a new trial based only on the three original statements and the one corrected statement. 555 S.W.3d at 331.

Under my reading of the DMA, the court of appeals erred because, as to the nine additional statements, Hogan never made any written Request at all. The written Request Hogan sent on March 7, 2014, was not merely insufficient as to the nine additional statements. If that were true, section 73.058(c) would have required Zoanni to file a motion challenging the Request's sufficiency within sixty days after she was served with citation. But of course, she could not have done that, because she could not have known that Hogan would later complain about and assert claims based on the nine additional statements, two years after filing suit and serving Zoanni with citation. Instead, although Hogan's March 2014 written Request was timely and sufficient as to the three original statements, Hogan never made any written Request at all regarding the nine new statements. Section 73.062(a) thus applies, because it applies when the plaintiff fails to make any "written [R]equest" at all, and sections 73.055(a) and 73.058(c) do not apply, because they apply when the plaintiff makes a written Request that is untimely or otherwise insufficient.

Once Hogan amended his petition to assert claims based on the nine additional statements, section 73.062(a) permitted Zoanni to file a plea in abatement within thirty days after filing her "original answer." Because I agree with the Court's plurality that the answer Zoanni filed in response to Hogan's new claims based on the nine new statements was her "original answer" as to those claims, see ante at ––––, I agree that Zoanni could have timely sought abatement in response to Hogan's new claims. The only remaining question, then, is whether Hogan could still make a timely Request at that point. The statute of limitations had clearly expired by then, but as the Court's plurality notes, Hogan pleaded the relation-back doctrine in his seventh amended petition. Under that doctrine, limitations had not expired on Hogan's claims based on the nine additional statements, and Hogan could still make a timely Request regarding those statements.⁵⁴ See ante at ––––. So Zoanni could seek abatement to require Hogan to make that Request as section 73.062(a) allowed. But she declined abatement when the topic was raised. Instead, she sought dismissal based on sections 73.055(a) and 73.058(c), which did not apply. Under the circumstances, I agree with the Court's plurality that Zoanni cannot now seek abatement. See ante at ––––. Having proceeded to trial on all of the allegedly defamatory statements, Zoanni must now accept the judgment based on the jury's verdict unless some other basis exists for reversing that judgment. As the plurality explains, Zoanni raised additional bases, but the court of appeals did not reach or address them. I agree with the plurality's decision to remand the case to the court of appeals so that it may now consider those unaddressed issues. See ante at ––––.

54 The relation-back doctrine provides that an amended petition "is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence." Tex. Civ. Prac. & Rem. Code § 16.068. " ‘Transaction’ is a word of flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship." Moore v. N.Y. Cotton Exch. , 270 U.S. 593, 610, 46 S.Ct. 367, 70 L.Ed. 750 (1926) (quoted in Lexington Ins. Co. v. Daybreak Express, Inc. , 393 S.W.3d 242, 244 (Tex. 2013) ).
Zoanni did not dispute the application of the doctrine in her motion for directed verdict or any other time before the trial court. Neither did she challenge the doctrine's applicability to the court of appeals. Because Zoanni has therefore waived any challenge to the relation-back doctrine, I would assume without deciding that the doctrine applies. See Alexander v. Turtur & Assocs., Inc. , 146 S.W.3d 113, 122 (Tex. 2004).

IV.

Conclusion

Just as the Uniform Law Commission included a section permitting plaintiffs to make a Request in their initial pleading and then cure any insufficiencies by amending those pleadings, the Texas Legislature apparently intended to eliminate "traps for unwary plaintiffs" by adding section 73.062 ’s abatement provisions to the DMA.⁵⁵ But if the legislature intended that abatement provide the defendant's sole remedy when a plaintiff fails to make a timely and sufficient Request, the legislature should not have included the UCCDA language stating that a plaintiff "may maintain an action only if" the plaintiff makes a timely and sufficient Request. Whether by mistake or not, section 73.062 allows abatement only when the plaintiff has failed to make a "written [R]equest," as section 73.055 requires, and nothing in section 73.062 permits the plaintiff to make a Request that is untimely. This construction reflects the different language used in each of the relevant sections and gives meaning to them all.

55 UCCDA § 3 cmt.

I agree with the Court's plurality that the court of appeals erred in holding that section 73.055(a) requires that Hogan's claims based on the nine additional statements be dismissed. But because I do not agree with its reasoning or with its construction of the DMA, I respectfully concur only in the judgment.

Chief Justice Hecht, joined by Justice Blacklock and Justice Huddle, dissenting.

The Texas Defamation Mitigation Act (the Act)¹ states: "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."² The plurality dutifully acknowledges that the purpose of statutory construction is to give effect to every word,³ but then it proceeds to give the words maintain only if no effect whatsoever. A plaintiff who has not made a timely request may nevertheless pursue his defamation action to judgment with at worst a short abatement along the way. A plaintiff who has never before made a request may do so during the abatement period, and that request will be timely, even though the deadline has passed. Sensing perhaps that its interpretation of the Act may not be entirely credible, the plurality bristles that it has no choice. "Holding otherwise", the plurality insists, "would deprive injured plaintiffs of any remedy".⁴ But that is true only for plaintiffs who fail to mitigate their damages in compliance with the Act. The Act affords every compliant plaintiff full recourse for all injuries suffered and may actually benefit the compliant plaintiff by encouraging the defendant to redress his injury. The plurality simply disagrees that noncompliance with the Act should have consequences, and so it must argue that by giving effect to every word of the Act, maintain only if compliance actually means maintain regardless of compliance. The plurality keeps its promise of giving effect to every word of the Act by redefining only if to mean whether or not. The plurality's position is Humpty Dumpty's: "When I use a word, ... it means just what I choose it to mean—neither more nor less."⁵ " ‘That's a great deal to make ... word[s] mean.’ "⁶

The Court is evenly divided on the meaning of maintain only if. The concurrence agrees with my analysis that noncompliance requires dismissal.⁷ The plurality opinion, joined by four Justices, disagrees—but not as a textual matter. The plurality gives itself away by explaining that reading the Act as written "would undermine [its] purposes".⁸ Thus, while the plurality's voice is that of a textualist, its hands are those of a purposivist.⁹ The textualist position is that what best achieves the Legislature's purpose—here, incentivizing the mitigation of defamation damages—is faithfully reading the Legislature's words to mean what they say. The purposivist "break[s] free from the bonds of statutory text to ensure that a preferred public policy [is] achieved."¹⁰ Justice Elana Kagan has famously said in tribute to Justice Antonin Scalia's successful advancement of the doctrine of textualism, "we're all textualists now".¹¹ More accurately, we all say we're textualists now.

8 Ante at 166-67.

9 With apologies to Father Isaac. See Genesis 27:22 ("So Jacob went near to Isaac his father, who felt him and said, ‘The voice is Jacob's voice, but the hands are the hands of Esau.’ ").

10 Diarmuid F. O'Scannlain, We Are All Textualists Now: The Legacy of Antonin Scalia , 91 St. John's L. Rev. 303, 305 (2017) (Remarks Given at St. John's University School of Law, Queens, N.Y., Sept. 29, 2017).

11 Harvard Law School, The 2015 Scalia Lecture: A Dialogue with Justice Elana Kagan on the Reading of Statutes , YouTube (Nov. 17, 2015) (statement at 8:28).

What would undermine the Legislature's purpose would be to refuse to interpret the Act as written, as the plurality proposes to do. And while that would be a serious matter, it would be of limited consequence. After all, the Legislature can fix this Court's statutory misinterpretations if it chooses. The greater damage would be the stark departure from statutory-construction principles on which the Court has stood firm. To be sure, statutory interpretation can be hard, as our cases reflect. Language is often unclear, and reasonable minds can differ on its best meaning. But maintain only if is about as clear as it gets. Refusing to give that phrase its plain meaning because judges doubt whether it is good policy would threaten to reduce principles to rhetoric, or chatter. At the very least, those principles do not emerge today unscathed, and for that reason, I must respectfully dissent.

I

As a general rule, "[t]he long-standing law of this state requires a claimant to mitigate damages if it can do so with ‘trifling expense or with reasonable exertions’."¹² Generally, "[a] plaintiff's post-occurrence failure to mitigate his damages operates as a reduction of his damages award".¹³ "Damages awarded for defamatory statements may be mitigated by factors such as public apology, correction, or retraction."¹⁴ But none of those things are within the defamation plaintiff's control. Only the defendant can change his statements. The plaintiff may have little ability to reduce their effect and little incentive to do anything that might blunt his efforts to punish the defendant with litigation and a damages award. The plaintiff could ask the defendant to change his statements, but the defendant may worry that retreating from his statements would signal a lack of confidence in their accuracy. It suffices to say that the common law has not been as effective in encouraging the mitigation of damages in defamation cases as it has been in other cases.

12 Warner Bros. Ent., Inc. v. Jones , 611 S.W.3d 1, 18 (Tex. 2020) (Hecht, C.J., dissenting) (quoting Walker v. Salt Flat Water Co. , 128 Tex. 140, 96 S.W.2d 231, 232 (1936) ); see also id. n.3 ("[E]ven in tort cases, plaintiffs have an obligation to mitigate damages before trial, and defendants have the ability to reduce their liability by paying the claimed damages before trial." (quoting JCB, Inc. v. Horsburgh & Scott Co. , 597 S.W.3d 481, 487 (Tex. 2019) )).

13 Nabors Well Servs., Ltd. v. Romero , 456 S.W.3d 553, 564 (Tex. 2015).

14 Cain v. Hearst Corp. , 878 S.W.2d 577, 582 (Tex. 1994) ; see Diamond Shamrock Refin. & Mktg. Co. v. Mendez , 844 S.W.2d 198, 210 (Tex. 1992).

Enter the Act. It was passed in 2013¹⁵ "to provide a method for a person who has been defamed by a publication or broadcast to mitigate any perceived damage or injury."¹⁶ But the method provided is neither optional nor one-sided. Left to their own under the common law, defamation parties have not been successful in achieving mitigation. Optional is not an option. And mitigation takes two, with responsibility on both the plaintiff and the defendant. The Act requires compliance to "maintain an action for defamation"¹⁷ and penalizes both parties for noncompliance.

15 Act of May 22, 2013, 83d Leg., R.S., ch. 950, § 2, 2013 Tex. Gen. Laws 2344.

16 Tex. Civ. Prac. & Rem. Code § 73.052.

17 Id. § 73.055(a).

The Act is modeled on the Uniform Correction or Clarification of Defamation Act,¹⁸ which the Uniform Law Commission adopted in 1993.¹⁹ The Uniform Act's prefatory note explains that because "harm to reputation can often be cured by other than money damages", the law should "provid[e] strong incentives ... to correct or clarify an alleged defamation as an alternative to costly litigation."²⁰ State retraction statutes had been "largely ineffective", according to the Commission, "because they most often appl[ied] to a narrow range of cases and they [did] not create sufficient incentives on both parties, the plaintiff and the defendant, to come to an agreement regarding retraction."²¹ The Uniform Act "seeks to remedy these flaws in current law by providing strong incentives for individuals promptly to correct or clarify an alleged defamation as an alternative to costly litigation."²²

18 See S. Comm. on State Affairs, Bill Analysis at 1, Tex. H.B. 1759, 83d Leg., R.S. ("In 1993, the Uniform Law Commission adopted the Uniform Correction or Clarification of Defamation Act which this bill [is] patterned after.").

19 Unif. Correction or Clarification of Defamation Act ( Nat'l Conference of Comm'rs on Unif. State Laws 1993) [hereinafter Unif. Act ].

20 Unif. Act prefatory note.

21 Id.

22 Id.

The Texas Act applies broadly to any "claim for relief, however characterized, from damages arising out of harm to personal reputation caused by the false content of a publication" and to all "forms of transmitting information."²³ As noted at the outset, the Act provides that "[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"—which, for simplicity, I will refer to as a Request —or "(2) the defendant has made a correction, clarification, or retraction"—which I will call a Change .²⁴ A Request "is timely if made during the period of limitation for commencement of an action for defamation",²⁵ which is one year.²⁶ A Request is sufficient if it:

23 Tex. Civ. Prac. & Rem. Code § 73.054.

24 Id. § 73.055(a) (emphases added).

25 Id. § 73.055(b).

26 See id. § 16.002(a) ("A person must bring suit for malicious prosecution, libel, slander, or breach of promise of marriage not later than one year after the day the cause of action accrues.").

(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.²⁷

27 Id. § 73.055(d).

These requirements are strict and detailed, but compliance is not difficult. In the context of this case, for example, though using other names and details, it might take this simple form:

To Jane Doe: I am John Doe. I live at 1 Main Street, Anytown, Texas. On June 16, 2020, you told a group at the First Baptist Church that I'm a pedophile. That is false. Pedophilia is immoral and criminal. Please take it back.

After a Request is received, the defendant has the option to ask the plaintiff "to provide reasonably available information regarding the falsity of the allegedly defamatory statement not later than the 30th day after the date the person receives the request."²⁸ To ensure that a Change actually mitigates the harm to a plaintiff, and that the plaintiff can ascertain that a subsequent publication was intended to be a Change, the Act imposes equally stringent requirements for a Change to be sufficient:

28 Id. § 73.056(a).

A [Change] is sufficient if it is published in the same manner and medium as the original publication or, if that is not possible, with a prominence and in a manner and medium reasonably likely to reach substantially the same audience as the publication complained of and:

(1) is publication of an acknowledgment that the statement specified as false and defamatory is erroneous;

(2) is an allegation that the defamatory meaning arises from other than the express language of the publication and the publisher disclaims an intent to communicate that meaning or to assert its truth;

(3) is a statement attributed to another person whom the publisher identifies and the publisher disclaims an intent to assert the truth of the statement; or

(4) is publication of the requestor's statement of the facts, as set forth in a [Request], or a fair summary of the statement, exclusive of any portion that is defamatory of another, obscene, or otherwise improper for publication.²⁹

29 Id. § 73.057(b).

As with a Request, the requirements for a sufficient Change are strict and detailed but also not hard to meet.

A defendant must raise a challenge to the timeliness or sufficiency of a Request by motion³⁰ and must notify a plaintiff of his intention to rely on a Change.³¹ A plaintiff must notify a defendant of any challenge to the timeliness or sufficiency of a Change and must assert the challenge in a motion.³² The Act specifies deadlines for these challenges.³³ The sufficiency and timeliness of a Request are generally questions of law for the trial court to determine before trial.³⁴

30 Id. § 73.058(c).

31 Id. § 73.058(a).

32 Id. § 73.058(b).

33 See id. § 73.058 (b) –(c).

34 Id. § 73.058(d).

The Act precludes a plaintiff's recovery of exemplary damages in three instances: if a Request is not made within 90 days of receiving knowledge of the publication;³⁵ if, after making a Request, a plaintiff does not provide evidence of the publication's falsity within 30 days after being asked by the defendant;³⁶ and if a defendant makes a sufficient Change within 30 days of a Request.³⁷ In the latter two instances, the plaintiff's recovery of exemplary damages is not affected if the publication was made with actual malice.³⁸

35 Id. § 73.055(c).

36 Id. § 73.056.

37 Id. § 73.059.

38 See id. §§ 73.056(b), 73.059.

Finally, a defendant in a pending suit who has not received a Request in compliance with the Act may, within 30 days of filing "an original answer", seek to abate the suit.³⁹ The plaintiff may then serve a Request on the defendant, and the abatement continues for 60 days or to an agreed date.⁴⁰

39 Id. § 73.062(a).

40 Id. § 73.062(c).

II

A divided court of appeals held that a plaintiff who does not make a Request before the limitations period expires cannot maintain the action; therefore, the defendant is entitled to dismissal.⁴¹ I agree. The plurality disagrees.

41 555 S.W.3d 321, 326 (Tex. App.—Houston [1st Dist.] 2018) (2–1). A panel of the U.S. Court of Appeals has reached the same result. See Tubbs v. Nicol , 675 F. App'x 437 (5th Cir. 2017) (per curiam) (affirming summary judgment for the defendant on the plaintiff's defamation claim where the plaintiff never made a Request and argued that doing so would have been futile).
But other Texas courts have concluded that dismissal is not required when a plaintiff fails to comply with the Act. See Cunningham v. Waymire , 612 S.W.3d 47, 70 (Tex. App.—Houston [14th Dist.] 2019, no pet.) ; Cummins v. Lollar , No. 07-16-00337-CV, 2018 WL 2074636, at *8 (Tex. App.—Amarillo May 3, 2018, pet. denied) (mem. op.); Warner Bros. Ent., Inc. v. Jones , 538 S.W.3d 781, 812 (Tex. App.—Austin 2017), aff'd on other grounds , 611 S.W.3d 1 (Tex. 2020) ; Hardy v. Commc'n Workers of Am. Local 6215 AFL-CIO , 536 S.W.3d 38, 48 (Tex. App.—Dallas 2017, pet. denied) ; see also MediaOne, L.L.C. v. Henderson , 592 S.W.3d 933, 945–946 (Tex. App.—Tyler 2019, pet. denied) (acknowledging the court of appeals’ split but declining to reach the issue).

The plurality reasons that maintain means continue , so if a plaintiff has not made a timely Request, the action cannot continue, and the Act must "determine the appropriate consequence".⁴² But the Act has already made that determination: the action cannot be maintained. Not so, the plurality insists, or the Legislature would have used the word dismissal as it has in other statutes addressing the consequences of a plaintiff's noncompliance, citing three examples.⁴³ In response, the concurring opinion cites more than two dozen statutes that "consistently use the phrase ‘maintain an action’ to address the plaintiff's ability to file a lawsuit or to continue one that has been filed"⁴⁴ and several decisions of this Court "us[ing] the phrase in the same way."⁴⁵ The plurality does not respond, effectively admitting that its argument is flawed and that the concurring opinion is correct.

42 Ante at 169-70.

43 Ante at 169-70.

44 Ante at 182 & n.35 (Boyd, J., concurring).

45 Ante at 183 & n.36 (Boyd, J., concurring).

The plurality argues that maintain only if cannot mean what it says because the Act requires that "to challenge the sufficiency or timeliness of a [Request], the defendant must state the challenge in a motion to declare the request insufficient or untimely served not later than the 60th day after the date of service of the citation."⁴⁶ The plurality asserts: "The dissent does not explain how [this] requirement of a timely objection to timeliness remains viable under its view of the statute as mandating dismissal once limitations has expired."⁴⁷ To the contrary, I both can and do: an action can always be maintained if the defendant has a defense but does not properly raise it, except when the court lacks jurisdiction.⁴⁸ The Act's maintain only if language is not jurisdictional. Noncompliance with the Act is no more a bar to an untimely suit than is any other defense that the defendant neglects to assert. Rather than hold that an action cannot continue when the plaintiff has made no timely Request, the plurality argues that the action can continue in an abated status because that is the Act's "process for addressing challenges to the required request".⁴⁹ The plurality acknowledges that "if the plaintiff cannot produce evidence of [a timely and sufficient] request, the plaintiff may not ‘maintain’ the suit".⁵⁰ But, according to the plurality, the suit is not dismissed. Rather, it is abated, and the plaintiff can "exit abatement" and move forward by "provid[ing] a written request in response to the plea in abatement."⁵¹ The Act indeed contemplates that in certain abated cases, the plaintiff can proceed with litigation by making a Request,⁵² but the Act does not suggest that a Request filed during abatement is timely long after the deadline for making it—the one-year statute of limitations—has passed.⁵³ The plurality is not deterred. The Act says that a Request "is timely if made " before limitations expires,⁵⁴ and the plurality reasons that "[s]imply because a request ‘is timely if made during the period of limitations for commencement of an action for defamation[ ]’ ... does not render a request served beyond the limitations period noncompliant."⁵⁵ Thus, for the plurality, timely if made means timely whether or not made , just as maintain only if means maintain whether or not. At least the plurality's misinterpretations of the Act are consistent.

46 Tex. Civ. Prac. & Rem. Code § 73.058(c).

47 Ante at 174.

48 See Tex. R. Civ. P. 94 (requiring a defendant to plead "any ... matter constituting an avoidance or affirmative defense"); Kinnear v. Tex. Comm'n on Human Rights ex rel. Hale , 14 S.W.3d 299, 300 (Tex. 2000) (per curiam) ("Immunity from liability, like other affirmative defenses to liability, must be pleaded, or else it is waived."). But see Tex. Ass'n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 443–444 (Tex. 1993) ("Subject matter jurisdiction is never presumed and cannot be waived.").

49 Ante at 170.

50 Ante at 171.

51 Ante at 171.

52 See Tex. Civ. Prac. & Rem. Code § 73.062(c).

53 See id. § 73.055(b) ("A request for a correction, clarification, or retraction is timely if made during the period of limitation for commencement of an action for defamation.").

54 Id.

55 Ante at 171.

An abatement may give a plaintiff time to cure any insufficiency in his Request, but it cannot roll back the clock and make timely a Request that would have been untimely before the abatement started. Yet that is precisely the plurality's view: "The suit recommences generally sixty days after the plaintiff provides the written request in response to the plea in abatement."⁵⁶ The requirement that a defamation action can be maintained only if the plaintiff has made a timely Request is fully satisfied if an untimely Request is made during an abatement. A plaintiff can ignore the Act's requirements for a timely Request, make an untimely one during abatement, and proceed to trial.

56 Ante at 171.

The better reading of the abatement provision—and the only one that gives the Act's maintain only if language any effect—is that it gives some defendants who do not receive a Request before suit is filed a short-fuse mechanism to force a Request from the plaintiff and perhaps pursue settlement. Because the case must be dismissed if the plaintiff has not made a sufficient Request within the one-year limitations period, abatement will not be an option in every case. The plurality worries that if a plaintiff's noncompliance with the Act results in dismissal, then defendants will be encouraged to sit back and wait until limitations has run. Some surely will. But even if the plurality were correct and the Act as written is bad policy, the plurality cannot legislate the Act out of existence, which is what it would do.⁵⁷ Finally, the plurality argues that "[i]n concluding that dismissal was a statutorily allotted consequence [of noncompliance with the Act], the court of appeals failed to recognize that all roads under the [Act] lead to a loss of exemplary damages rather than dismissal."⁵⁸ Except that most roads are blocked. According to the plurality, the Act's exemplary-damages bar is a nullity. All a plaintiff needs to do to avoid it is to sue just before limitations expires, argue that he did not know of the defamation more than 90 days earlier, and still make a request. Actually, the plaintiff need not even make the request since, according to the plurality, the petition is itself a request.⁵⁹ In the end, as the plurality reads the Act, a plaintiff need hardly ever comply with the Act and need not attempt to mitigate his damages to maintain his action and recover exemplary damages.

57 Zoanni argues that she could not have obtained an abatement because the deadline for requesting one, 30 days after filing "an original answer", had long-since passed. Not so, the Court argues, because the defendant's first answer in a case is the original answer, but any later answer to new claims is still an original answer. Ante at 175-76. Because Hogan had filed a seventh amended petition ten days before trial, Zoanni's answer to its new allegations of other defamatory publications would restart the 30-day clock for her plea in abatement. This argument has not been previously mentioned in this litigation at any stage and could have far-reaching implications. In any event, it is not implicated by my position, and I need not address it.

58 Ante at 171.

59 Ante at 170-71 n.1. Section 3(d) of the Uniform Act provides just that: "In the absence of a previous adequate request, service of a [summons and complaint] stating a [claim for relief] for defamation and containing the information required in subsection (c) constitutes an adequate request for correction or clarification." Unif. Act § 3(d). The Legislature conspicuously omitted this provision from the Texas Act.

* * * * *

As the plurality reads the Act, its provisions accomplish essentially nothing. Though compliance with the Act is not difficult, imposing any different or unusual statutory requirements on one type of common-law action can be unexpected and can easily have unintended consequences. That is especially true here, where, even though mitigation of damages is a very sensible and generally applicable rule, the common law has not succeeded in applying it in defamation actions as in other actions, and its source is now a special, recently enacted statute. The difficulties are that mitigation in defamation actions is usually within the defendant's sole control and the plaintiff can do little more than ask, protagonists have little natural inclination to work toward mitigation, and most people who believe themselves to have been spoken of falsely or accused of lying would rather litigate than mitigate. But how to meet these difficulties is the Legislature's choice, and it has made that choice in the Act. A defamation action may be maintained only if there has been compliance with its requirements. Maybe that choice was flawed. But whether the Legislature's choice was apt is not a judicial decision. The plurality would remove all concern that a claim it would consider deserving could be lost by judicially repealing the Act. We're not quite all textualists.

The Act states: "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."⁶⁰ I respectfully submit that these words, whether in isolation or in context, considering the Act's purpose or ignoring it, and with or without regard to policy, simply cannot fairly be read to provide the exact opposite: that a person need not make a timely Request for a Change compliant with the Act to maintain an action for defamation all the way to judgment.

60 Tex. Civ. Prac. & Rem. Code § 73.055(a)(1) (emphases added).

Accordingly, I respectfully dissent.