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
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Sitting by assignment
04-25-00454-CV
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,
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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 ChristiEdinburg 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
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