Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-25-00454-CV
Flor E. FLORES,
Appellant
v.
Marisa Silva SEPULVEDA,
Appellee
From the 229th Judicial District Court, Starr County, Texas Trial Court No. DC-24-104 Honorable Jose Manuel Bañales, Judge Presiding 1 0F
ñ Opinion by: Adrian A. Spears II, Justice
Sitting: Lori I. Valenzuela, Justice Adrian A. Spears II, Justice Velia J. Meza, Justice
Delivered and Filed: August 19, 2026 REVERSED AND REMANDED Appellant Flor E. Flores appeals from the trial court’s order granting Appellee Marisa Silva Sepulveda’s motion for summary judgment on Flores’s defamation claim and denying Flores’s motion for summary judgment. On appeal, Flores argues that the trial court erred granting summary judgment on Sepulveda’s substantial truth defense and in denying Flores’s motion for
1 Sitting by assignment
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summary judgment. Because we conclude the summary judgment record does not establish that either party is entitled to summary judgment, we reverse the trial court’s judgment and remand for further proceedings consistent with this opinion.
BACKGROUND
Flores is a practicing attorney who owns a law firm under the same name in Rio Grande City, Texas. On March 5, 2024, Flores made a post to her personal Facebook page congratulating Eleazar Velasquez as the “newly elected County Commissioner.” Sepulveda commented on the post, contesting Flores’s statement and an argument ensued between the two parties in the comment section. Sepulveda subsequently made a post stating, “Mi Orgullo es que mil veces vender seguros…que aser abogada Flor E Flores y andar asiendo checques calientes y los clients echandote que no sirveces de abogada…..pero bueno cuando te sientes superior….lastima.” The official translation admitted into evidence states, “My pride is a thousand times to sell insurance….than to become a lawyer Flor E Flores and go around writing hot checks and the clients telling you that you are no good as a lawyer…but well when you feel superior…too bad.” On her personal Facebook page, Sepulveda continued to post about Flores, providing screenshots of Flores’s bar card number and a phone number for “[a]nyone [who] needs to report Flor E[.] Flores.”
On March 14, 2024, Flores filed this lawsuit against Sepulveda alleging that Sepulveda’s statements about Flores writing “hot checks” amounted to defamation. On January 22, 2025, Sepulveda moved for a traditional summary judgment motion on the grounds that (1) her statement was substantially true; (2) Flores cannot prove actual malice because she is a public figure; and (3) the statement is a protected opinion.
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That same day Flores filed a response to the motion, along with a cross-motion for traditional and no-evidence summary judgment, which relied on the same summary judgment evidence as Sepulveda. In her response, Flores argued that Sepulveda failed to provide proof that the checks were written by her or that they were “hot checks.” Second, she stressed that (1) the seventeen checks in question were signed by her husband and not by her, and (2) the county attorney’s notices were addressed to “Mr. Flor Flores” and not to her. Third, she argues that the civil suit between Flores and Rodriguez demonstrates an ongoing civil dispute; because these seventeen checks are the subject of pending civil litigation, their issuance is strictly a civil matter rather than a criminal one.
After hearing both motions, the trial court denied Flores’s motion for summary judgment and granted Sepulveda’s motion for summary judgment. In its summary judgment order, the trial court determined that the notices display that “the County Attorney’s office clearly viewed the making and issuance of the checks as a criminal offense and a criminal matter.” Second, the trial court found that Flores did not allege any summary judgment proof that “she is not the Flor E. Flores of the Law Firm of Flor E. Flores or that she is not the owner of said law firm. Nor did she produce summary judgment proof that Marco Flores, her husband, had no authority to issue and sign the checks . . . .” Third, the trial court found that based on these findings, it would be unnecessary to determine whether Flores is a public or private figure. Fourth, the trial court found that “the terms ‘hot checks,’ ‘bad checks’ and ‘insufficient funds checks’ are synonymous with each other” and are a criminal offense. The trial court concluded that Sepulveda had established that “Flores, through her law office, issued hot checks, bad checks, or insufficient funds checks,” and thus had established the truth of her claim.
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On appeal, Flores argues that Sepulveda did not establish her entitlement to summary judgment as a matter of law. She also contends the trial court erred in failing to grant summary judgment in her favor. Flores’s primary argument is that Sepulveda failed to introduce evidence that proves the truthfulness of her statement.
STANDARD OF REVIEW
We review the grant of summary judgment de novo. Eagle Oil & Gas Co. v. TRO-x, L.P., 619 S.W.3d 699, 705 (Tex. 2021). To prevail on a traditional summary judgment motion, the movant is required to establish that no genuine issue of material fact exists and that she is entitled
to judgment as a matter of law. TEX. R. CIV. P. 166a(c). 2 “When reviewing a summary judgment, 1F
we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Once the movant establishes a right to summary judgment, the burden shifts to the nonmovant to present evidence creating a fact issue. Stanfield v. Neubaum, 494 S.W.3d 90, 97 (Tex. 2016).
When both parties move for traditional summary judgment, they must each carry their own burden of establishing a right to judgment. See Tarr v. Timberwood Park Owners Ass’n, 556 S.W.3d 274, 278 (Tex. 2018). Neither party can prevail solely because the other party failed to discharge her burden. State Farm Lloyds, Inc. v. Williams, 791 S.W.2d 542, 549-50 (Tex. App.— Dallas 1990, writ denied). When the motions are before the trial court at the time judgment is rendered, all the evidence accompanying both motions should be considered in deciding whether to grant or deny either party’s motion. Trial v. Dragon, 593 S.W.3d 313, 316-17 (Tex. 2019). The appellate court should then “determine all questions presented” and “render the judgment that the
2 All references to Texas Rule of Civil Procedure 166a are to the rule in effect prior to March 1, 2026, when recent amendments to the rule became affective. See TEX. R. CIV. P. 166a.
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trial court should have rendered.” FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
A defendant is entitled to summary judgment if she “conclusively negates at least one of the essential elements of a cause of action.” Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995) (citation modified). Similarly, a defendant is entitled to summary judgment if she conclusively establishes each element of an affirmative defense. Id. However, a plaintiff moving for summary judgment is not under any obligation to negate affirmative defenses pled by the defendant. Meyer v. Castroville State Bank, No. 04-25-00278-CV, 2026 WL 1088374, at *2 (Tex. App.—San Antonio Apr. 22, 2026, no pet.) (citing Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 124 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)).
“When a trial court’s order does not specify the grounds for its summary judgment, an appellate court must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious.” Headington Royalty, Inc. v. Finley Res., Inc., 623 S.W.3d 480, 489 (Tex. App.—Dallas 2021), aff’d, 672 S.W.3d 332 (Tex. 2023) (citation omitted). “However, when the trial court’s summary judgment order does specify a ground on which it was granted, we generally limit our review to that ground.” Id. The supreme court has held that we may consider, “in the interest of judicial economy, those other grounds the trial court did not rule on if the movant has preserved them for appellate review.” Rodriguez v. Lockhart Contracting Servs., Inc., 499 S.W.3d 48, 63 (Tex. App.—San Antonio 2016, no pet.) (citing Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625-26 (Tex. 1996)). “A movant preserves ‘other grounds’ for review by filing a cross appeal or asserting a cross-point in its appellate brief raising those grounds as an alternate basis for affirming summary judgment.” Id. (citing Cincinnati Life, 927 S.W.2d at 625-26).
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DEFAMATION
Defamation may be conveyed through either slander or libel. See Doe v. Cruz, 683 S.W.3d 475, 495 (Tex. App.—San Antonio 2023, no pet.) (“Slander is an orally expressed defamatory statement, and libel is a defamatory statement expressed in written or other graphic form”). A statement is considered defamatory when it “tends to injure a living person’s reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person’s honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury.” TEX. CIV. PRAC. & REM. CODE § 73.001. To establish a prima facie case of defamation, the plaintiff must prove four elements: “(1) the publication of a false statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with the requisite degree of fault, and (4) damages, in some cases.” In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015); see TEX. CIV. PRAC. & REM. § 73.001. “The status of the person allegedly defamed determines the requisite degree of fault.” In re Lipsky, 460 S.W.3d at 593. “A private individual need only prove negligence, whereas a public figure or official must prove actual malice.” Id. “‘Actual malice’ in this context means that the statement was made with knowledge of its falsity or with reckless disregard for its truth.” Id. The alleged defamatory statement “must be construed ‘as a whole in light of surrounding circumstances based upon how a person of ordinary intelligence would perceive the entire statement.’” Cram Roofing Co. v. Parker, 131 S.W.3d 84, 90 (Tex. App.—San Antonio 2003, no pet.) (quoting Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 654 (Tex. 1987)). “Finally, the plaintiff must plead and prove damages, unless the defamatory statements are defamatory per se.” In re Lipsky, 460 S.W.3d at 593. “Defamation per se refers to statements that are so obviously harmful that general damages may be presumed.” Id.
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A. Sepulveda’s Motion for Summary Judgment on Substantial Truth Defense Sepulveda argues that her statement that Flores issued “hot checks” is substantially true.
“A showing of substantial truth at a summary judgment hearing will defeat a defamation claim.” Milam v. Nat’l Ins. Crime Bureau, 989 S.W.2d 126, 130 (Tex. App.—San Antonio 1999, no pet.) (citing McIlvain v. Jacobs, 794 S.W.2d 14, 15 (Tex. 1990)); see also Ortiz v. San Antonio City Emp. Fed. Credit Union, 974 S.W.2d 833, 837 (Tex. App.—San Antonio 1998, no writ). The “complained-of statement need not be true in every detail.” Rockman v. Ob Hospitalist Grp., Inc., No. 01-21-00383-CV, 2023 WL 3311548, at *15 (Tex. App.—Houston [1st Dist.] May 9, 2023, no pet.). Instead, a defendant need only “show the substantial truth of the statement to establish the defense.” Id. The test for substantial truth is “whether the alleged defamatory statement was more damaging to [the plaintiff’s] reputation, in the mind of the average listener, than a truthful statement would have been.” Id. (quoting McIvain, 794 S.W.2d at 16) (alteration in original); see also Entravision Commc’ns Corp. v. Belalcazar, 99 S.W.3d 393, 397 (Tex. App.—Corpus Christi- Edinburg 2003, pet. denied) (same). The term “gist” means “the main point or part,” or “essence,” of the publication. Rockman, 2023 WL 3311548, at *15 (quoting Reedy v. Webb, 113 S.W.3d 19, 24 (Tex. App.—Tyler 2002, pet. denied).
Because truth is “an affirmative defense, the defendant bears the burden of establishing that the alleged defamatory statements were true.” Garcia v. Allen, 28 S.W.3d 587, 593-94 (Tex. App.—Corpus Christi-Edinburg 2000, pet. denied). Under Texas Rule of Civil Procedure 166a, a traditional motion for summary judgment seeks to establish that no genuine issue of material fact exists as to a claim or defense and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a. A defendant may move for summary judgment on the substantial truth defense, and if a genuine issue of material fact remains as to the substantial truth of the statements at issue,
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summary judgment must be denied. See Entravision, 99 S.W.3d at 398; Klentzman v. Brady, 312 S.W.3d 886, 903 (Tex. App.—Houston [1st Dist.] 2009, no pet.). “To establish the truth defense at the summary judgment phase” in a defamation action, “a defendant must show that the gist of the publication is substantially true.” Scripps NP Operating, LLC v. Carter, 573 S.W.3d 781, 793 (Tex. 2019).
In this case, Flores points out the distinction between a “stop payment” check, which can relate to a civil dispute, and an “insufficient funds” check or a “hot check” which can be subject to criminal penalties under section 32.41 of the Penal Code. The difference of whether Flores did a criminal act versus a civil act is no doubt substantial in the eyes of the public. Section 32.41 provides that a “person commits an offense if he issues or passes a check . . . for the payment of money knowing that the issuer does not have sufficient funds in or on deposit with the bank or other drawee for the payment in full of the check or order as well as all other checks or orders outstanding at the time of issuance.” TEX. PENAL CODE § 32.41(a) (emphasis added). Pursuant to section 32.41(a) of the Penal Code, a person must have intent to write a check with the knowledge that there are insufficient funds in the account to cover the check. See TEX. PENAL CODE § 32.41(a). Here, the summary judgment evidence shows that (1) Flores’s husband, on behalf of her law office, wrote seventeen checks to the landlord that were marked “stop payment”; (2) “Mr. Flor Flores” received seventeen notices from the county attorney’s office that leaving these checks unpaid could result in criminal charges; and (3) a civil lawsuit exists between Flores’s law firm and the landlord, which was the reason for the “stop payment” checks. In reviewing this evidence in the light most favorable to Flores, there is a considerable gap in the summary judgment evidence, and the evidence does not show Flores intentionally issued checks with the plan to leave them unpaid.
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Our inquiry remains fact intensive because, even though Flores received notice of intent to prosecute the unpaid checks, “stop payment” checks are not inherently illegal. See TEX. PEN. CODE § 32.41. The fact that a county attorney sent a letter of intent to prosecute is not evidence, in and of itself, that Flores wrote checks with knowledge that insufficient funds existed to cover the checks. Additionally, Flores did not sign the checks, and there was no summary judgment evidence relating to Flores authorizing her husband to sign the checks with knowledge of insufficient funds. Accordingly, we conclude that the summary judgment evidence does not establish that Flores intentionally issued checks she did not intend to pay. Nor can we conclude, as a matter of law, that accusing Flores of writing “hot checks” was substantially true. Likewise, whether the gist of the statement would reasonably be understood as alleging criminal conduct presents a fact question based on surrounding testimony not apparent from this record that is more appropriately resolved by a jury.
We hold only that Sepulveda failed to meet her burden of establishing, as a matter of law, that her statement was substantially true.
B. Flores’s Motion for Summary Judgment on Defamation Claim Flores next argues that the trial court should have granted her summary judgment on her defamation claim against Sepulveda. To prove her defamation claim, Flores had to show that (1) Sepulveda published a false statement of fact to a third party; (2) the statement was defamatory concerning Flores; (3) Sepulveda, concerning the truth of the statement, acted with either negligence (if Flores is a private individual), or actual malice (if Flores is a public figure or public official); and (4) the publication of the statement caused damages (unless the damages are presumed). See TEX. CIV. PRAC. & REM. § 73.001; Lilith Fund for Reprod. Equity v. Dickson, 662 S.W.3d 355, 363 (Tex. 2023); In re Lipsky, 460 S.W.3d at 593.
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In its order, the trial court concluded that it was unnecessary to determine whether Flores was a public or private figure because it found that Sepulveda had established the affirmative defense of substantial truth as a matter of law. We disagree. Without first resolving that issue, the court could not determine whether an essential element of Flores’s defamation claim had been conclusively established or negated as a matter of law. The record in this case is devoid of evidence that would conclusively establish whether Flores was a public figure or a private individual at the time the allegedly defamatory statements were made. The only evidence arguably bearing on that issue is Flores’s allegation that she had practiced law in Starr County, its surrounding counties, and throughout the State of Texas for nearly sixteen years; had previously served as a city commissioner; currently served on the Economic Development Corporation Board; and that Sepulveda’s statements injured her personally, professionally, and in her capacity as a board member and former commissioner.
Standing alone, however, these facts do not conclusively establish Flores’s status for purposes of a defamation claim. The mere fact that Flores is an attorney, formerly held elected office, or currently serves on a local board does not, as a matter of law, render her a public figure or public official for all purposes. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). More importantly, the relevant inquiry concerns her status at the time the allegedly defamatory statements were published and whether the statements arose from her role as a public official or public figure. See id. The summary judgment record does not conclusively answer either question.
Because the record does not establish, as a matter of law, whether Flores is a public or private figure, we cannot determine which fault standard governs her defamation claim negligence or actual malice. See id.
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CONCLUSION
Because we conclude the summary judgment record does not establish that either party is entitled to summary judgment, we reverse the trial court’s judgment and remand for further proceedings consistent with this opinion.
Adrian A. Spears II, Justice