Affirmed and Opinion filed August 21, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00268-CV

HELEN MAYFIELD, Appellant

V.

STEVE FULLHART AND 

GRAY TELEVISION GROUP, INC. D/B/A KBTX-TV, Appellees

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Cause No. 2011-26159

OPINION

Appellant, Helen Mayfield, sued appellees, Gray Television Group, Inc. 

d/b/a KBTX-TV1 and Steve Fullhart for libel based on reports regarding Mayfield 

that appellees broadcast on television and posted on the internet. Mayfield 

1 In her petition, Mayfield named “Gray Communications” and “KBTX News” as 

defendants. Appellees filed an unchallenged verified denial, averring the correct name of the one 

entity is “Gray Television Group, Inc. d/b/a KBTX-TX” and there is no separate entity named 

“KBTX News.”

 
appeals a summary judgment in favor of appellees on the ground her claim is 

barred by the statute of limitations. We affirm.

I. BACKGROUND

Mayfield, a disbarred attorney, appears pro se in the present appeal. In 

2007, a grand jury indicted Mayfield on multiple counts of forgery. In July 2008, a 

Brazos County jury convicted Mayfield, and she was sentenced to two years’ 

confinement in state jail. The Waco court of appeals affirmed the conviction, and 

the Texas Court of Criminal Appeals refused Mayfield’s petition for review. See

Mayfield v. State, Nos. 10-08-00292, 293, 294, 295-CR, 2010 WL 2953199 (Tex.

App.—Waco July 28, 2010, pet. ref’d) (mem op., not designated for publication).

At relevant times, Fullhart was a news reporter for KBTX-TV—a television 

station in College Station, Texas. On October 5, 2007, the station broadcast a 

report by Fullhart regarding Mayfield’s indictments. A few hours later the same 

day, the report was published on the station’s publicly accessible website. 

On July 25, 2008, the station broadcast another report by a different news 

reporter regarding Mayfield’s conviction. A few hours later the same day, that 

report was published on the station’s website.

On April 29, 2011, Mayfield sued appellees for libel.

2

 Mayfield also named 

John Cuoco, apparently a reporter for a different television station, as a defendant, 

but he was never served with process.

Appellees filed a motion for summary judgment on the sole ground that 

Mayfield’s suit is barred by the applicable one-year statute of limitations. 

2 In her petition, Mayfield referred to her claim generally as “defamation,” but it is more 

specifically a claim for libel. See Dolcefino v. Randolph, 19 S.W.3d 906, 917 (Tex. App.—

Houston [14th Dist.] 2000, pet. denied) (recognizing broadcast of a defamatory statement on 

television constitutes libel, not slander).

2

 
Mayfield timely filed a response and a countermotion for summary judgment, to 

which appellees responded. Mayfield set her countermotion for submission after 

the hearing date noticed on appellees’ motion. At the hearing on appellees’ 

motion, the trial court permitted Mayfield to file post-hearing authority on the 

limitations issue. Subsequently, Mayfield filed what she referenced as further 

responses to appellees’ motion, including additional argument on the limitations 

issue, and further support, including evidence, for her countermotion. 

On December 13, 2011, the trial court signed (1) an order granting the 

appellees’ motion for summary judgment and dismissing all of Mayfield’s claims 

against those parties, and (2) an order denying Mayfield’s countermotion for 

summary judgment. Subsequently, Mayfield non-suited her claims against Cuoco, 

thereby rendering final the summary judgment in favor of appellees.

II. ANALYSIS

Mayfield filed an original and a supplemental appellate brief, which are

deficient in that many of her contentions are unclear, difficult to understand, and 

unsupported by record references, argument, or authorities, as required by the 

appellate briefing rules. See Tex. R. App. P. 38.1(g), (i).3

 However, liberally 

construing the briefs, we glean that Mayfield’s issues pertinent to this appeal 

(numbered differently at various points throughout her brief) fall into five

categories: (1) portions of the clerk’s record have been destroyed or altered; (2) 

some of appellees’ summary judgment evidence was inadmissible; (3) appellees 

failed to produce certain items during discovery; (4) appellees failed to serve 

3 Additionally, Mayfield includes matters irrelevant to challenging the trial court’s orders 

at issue and unsubstantiated allegations. For instance, she essentially challenges her criminal 

conviction and the actions of authorities relative to the criminal prosecution and suggests

appellees burglarized Mayfield’s home to steal her legal files. 

3

 
Mayfield with a complete copy of the motion for summary judgment and any

notice of hearing; and (5) the statute of limitations did not bar her suit. 

A. Complaint regarding the Record

Mayfield contends her due process rights were violated because she is 

indigent and entitled to a free record but the district clerk omitted exhibits that

would defeat the statute-of-limitations ground from the record filed in our court. 

We reject this contention because the crux is not that the clerk inadvertently failed 

to file a complete record but rather an unsupported claim that “someone in the 

judge’s office” or appellees tampered with the record. Moreover, Mayfield did not 

request the clerk to supplement our record with any omitted items, as she was 

permitted to do if she believed a requisite item was missing. See Tex. R. App. P. 

34.5(c)(1). She claims a request to supplement would have been pointless because 

the records have been “destroyed or altered.” However, the record does not reflect 

that Mayfield invoked the procedure for correcting the record if an item is lost or 

destroyed. See id. 34.5(e).

B. Admission of Evidence

Mayfield argues the “documents of conviction” purportedly filed to support 

the motion for summary judgment were inadmissible under Texas Rule of 

Evidence 609(e) because appeal of her conviction was pending in the United States 

Supreme Court. It is not clear to what documents she refers. Regardless, rule 609 

is wholly inapplicable; it prescribes circumstances under which a prior criminal 

conviction is admissible for purposes of impeaching a witness and provides that 

pendency of an appeal renders a conviction inadmissible for that purpose. See Tex. 

R. Evid. 609, 609(e).

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C. Contention regarding Discovery

Mayfield argues that appellees failed to respond to her discovery requests 

with documents that would defeat the statute-of-limitations ground. Mayfield has 

waived her complaint because the record does not indicate she filed a motion to 

compel production of any documents before the hearing, much less obtained a 

ruling. See Tex. R. App. P. 33.1(a)(1) (providing that, to preserve error, party must 

present complaint to trial court via timely objection or request and obtain a ruling); 

Corona v. Pilgrim’s Pride Corp., 245 S.W.3d 75, 84 (Tex. App.—Texarkana 2008, 

pet. denied) (recognizing that failure to obtain ruling on discovery dispute waives 

challenge to summary judgment on ground movant did not adequately respond to 

discovery request); see also U. Lawrence Boze’ & Assoc., P.C. v. Harris Cnty. 

Appraisal Dist., 368 S.W.3d 17, 32 (Tex. App.—Houston [1st Dist.] 2011, no pet.)

(recognizing generally that to preserve error on a discovery dispute, the appealing 

party must obtain a ruling by the trial court on the discovery issue).

D. Service of the Motion for Summary Judgment and Notice of Hearing 

Mayfield suggests she was not served with a complete copy of appellees’ 

motion for summary judgment and any notice of hearing. However, the motion 

and the notice of hearing each contain a certificate of service by appellees’ counsel

attesting to timely service on Mayfield via certified mail, return receipt requested.

A certificate of service by an attorney of record is prima facie evidence of the fact 

of service, and creates a presumption of receipt, rebuttable through proof of nonreceipt. See Tex. R. Civ. P. 21a(e); Approx. $14,980 v. State, 261 S.W.3d 182, 

186–87 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Further, a non-movant 

seeking to set aside a summary judgment on the ground she received no notice of 

hearing must preserve error in a post-judgment motion. See Babajide v. Citibank 

(South Dakota), N.A., No. 14–04–00064–CV, 2004 WL 2933575, at *1 (Tex. 

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App.—Houston [14th Dist.] Dec. 21, 2004, no pet.) (mem. op.). The record does 

not demonstrate that Mayfield raised the service issue in the trial court, much less 

that she presented evidence controverting the certificates of service.

E. Statute-of-Limitations Ground

Mayfield challenges the summary judgment on the ground her suit was

barred by the statute of limitations. We conclude the trial court did not err by 

granting summary judgment on that ground.4

1. Standard of Review and Applicable Law

A party moving for traditional summary judgment must establish there is no 

genuine issue of material fact and it is entitled to judgment as a matter of law. See 

Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 

211, 215–16 (Tex. 2003). A defendant moving for traditional summary judgment 

must negate at least one element of each of the plaintiff’s theories of recovery or 

plead and conclusively establish each element of an affirmative defense. Science 

Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). If a movant

defendant establishes his right to summary judgment as a matter of law, the burden 

shifts to the non-movant to present evidence raising a genuine issue of material 

fact. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). We 

review a summary judgment de novo. Knott, 128 S.W.3d at 215. We take all 

evidence favorable to the nonmovant as true and indulge every reasonable 

inference and resolve any doubts in her favor. Id.

4 Mayfield does not expressly challenge the denial of her countermotion for summary 

judgment. In that motion, Mayfield asserted she could prove all elements of her claim and 

referenced her attached evidence. In her appellate brief, she argues appellees’ publications were 

defamatory. Even if we construe that argument as challenging the denial of her counter motion, 

the trial court did not err by denying that motion and granting appellees’ motion because the 

statute of limitations bars Mayfield’s claims, irrespective of whether they are meritorious.

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2. Discussion

Under Texas law, the statute of limitations for libel is one year after the date 

that the cause of action accrues. Tex. Civ. Prac. & Rem. Code Ann. § 16.002(a)

(West 2002). To support their limitations ground, appellees relied on “the single 

publication rule,” which our court has adopted in cases alleging mass media libel. 

See Holloway v. Butler, 662 S.W.2d 688, 690–91 (Tex. App.—Houston [14th 

Dist.] 1983, writ ref’d n.r.e.); see also Williamson v. New Times, Inc., 980 S.W.2d 

706, 710 (Tex. App.—Fort Worth 1998, no pet.). The “single publication rule” 

provides,

No person shall have more than one cause of action for damages for 

libel . . . or any other tort founded upon any single publication or 

exhibition or utterance, such as any one edition or issue of a 

newspaper or book or magazine or any one presentation to an 

audience or any one broadcast over radio or television or any one 

exhibition of a motion picture. Recovery in any action shall include 

all damages for any such tort suffered by the plaintiff in all 

jurisdictions.

Holloway, 662 S.W.2d at 690. When the rule applies, a libel action accrues, for 

statute-of-limitations purposes, upon “publication.” See id. at 692; see also

Williamson, 980 S.W.2d at 710. Publication is complete on “the last day of the 

mass distribution of copies of the printed matter” because that is the day “when the

publishers, editors and authors have done all they can to relinquish all right of 

control, title and interest in the printed matter.” See Holloway, 662 S.W.2d at 692; 

see also Williamson, 980 S.W.2d at 710. Our court rejected the principle that each 

time a libelous article is brought to the attention of a third person, such as each 

time a libelous book, paper, or magazine is sold, a new publication has occurred,

creating a separate tort. See Holloway, 662 S.W.2d at 690–91. The rationale 

behind the single-publication rule includes (1) preventing the assertion of stale 

claims, multiplicity of claims, and problems concerning apportionment of 

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damages, conflicts of laws, and venue, and (2) the fact that the mass 

communication of a single defamatory statement constitutes, for all practical 

purposes, a single wrong. See id. at 691. A plaintiff is not limited to a single cause 

of action in the event the same information appears in separate printings of the 

same publication or in different publications. Id. at 692. The single publication 

rule applies strictly to multiple copies of a libelous article published as part of a 

single printing. Id.

Appellees presented as summary judgment evidence affidavits averring as 

follows: (1) their two news reports regarding Mayfield were broadcast respectively 

on October 5, 2007 and July 25, 2008, and posted on the KBTX-TV website the 

same days; (2) neither KBTX-TV nor Fullhart individually has published any news 

reports or otherwise made any statements concerning Mayfield since July 25, 

2008; and (3) since the dates that KBTX-TV posted the reports on its website, the 

reports “have not been reposted, republished, edited, changed, or altered in any 

way.” As appellees asserted, Mayfield did not file her suit until April 29, 2011—

well over one year after the last report was broadcast on television and posted on 

the station website.5

 Although Mayfield claims the affidavits presented by 

appellees were perjured, she failed to present any controverting evidence. 

Mayfield presents what we construe as three challenges to the limitations 

ground: (1) the single publication rule does not apply to a libel claim based on a 

report published on the internet; (2) the discovery rule tolled the limitations period;

and (3) she alleged a business disparagement claim, for which the statute of 

5 Although not exactly clear, in her petition, Mayfield’s claim against appellees seems to 

be based only on their October 5, 2007 report—not their July 25, 2008 report. Mayfield did 

complain that John Cuoco made an allegedly defamatory report in July 2008, but Mayfield’s 

summary judgment evidence indicated he was a reporter for a different television station than 

KBTX-TV. Even if Mayfield’s claim against appellees was also based on their July 25, 2008 

report, appellees established the entire claim is barred by limitations. 

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limitations is two years, the discovery rule applies, and the single publication rule 

does not apply.

Application of the single publication rule to internet publication 

We recognize that the Holloway court defined the single publication rule to 

include only one cause of action for “any one broadcast over . . . television,” but its 

discussion regarding determining when a publication has occurred focused on 

printed media, such as a newspaper. See id. at 690–92. Regardless, Mayfield does 

not challenge application of the single publication rule relative to the television 

broadcasts at issue; she focuses solely on the internet publication of the reports. In 

fact, as mentioned above, there is no evidence controverting appellees’ proof that 

the reports were each broadcast only once on television. Thus, we need not further 

address the single publication rule relative to television broadcasts.

Rather, we turn to Mayfield’s argument that the single publication rule 

should not apply when, as in the present case, a news report is posted on the

publisher’s webpage. Mayfield suggests a report posted on the internet has a 

greater potential than a report published in a newspaper or on television to remain 

publicly available for a long period, be repeatedly viewed, and be viewed by a 

wide audience. She apparently maintains that a new cause of action for libel 

accrues, for limitations purposes, each day that the report remains on the internet; 

i.e., there is a new publication and Mayfield has been defamed every day because 

the report remains accessible to third parties. 

We have not found, and the parties do not cite, any Texas cases addressing 

whether the single publication rule applies to a media report posted on the internet. 

However, in Nationwide Bi-Weekly Administration, Inc. v. Belo Corp., 512 F.3d 

137, 141–46 (5th Cir. 2007), the Fifth Circuit Court of Appeals predicted The 

Supreme Court of Texas would apply the rule to a report published on the internet 

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and reject “the continuous publication rule” suggested by Mayfield—that when 

such a report remains constantly available on the internet, each day results in a new 

publication. See id. at 143 (recognizing Fifth Circuit, when applying Texas law 

but addressing unsettled issue, is required to follow the rule it believes the 

Supreme Court of Texas would adopt). The Fifth Circuit based its decision on (1) 

the majority view among courts, and (2) the rationale behind the rule. See id. at 

142–46.

With respect to the first factor, the Fifth Circuit was persuaded by the fact 

that every court that had decided the issue as of that date had held the single 

publication rule applies to information publicly available on the internet. See id. at 

144 (citing, e.g., Oja v. U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1133 (9th Cir.

2006); Van Buskirk v. New York Times Co., 325 F.3d 87, 89 (2nd Cir. 2003); Mitan 

v. Davis, 243 F.Supp.2d 719, 724 (W.D. Ky. 2003); Churchill v. State, 378 N.J.

Super. 471, 876 A.2d 311, 316 (2005); McCandliss v. Cox Enters., 265 Ga. App. 

377, 593 S.E.2d 856, 858 (2004); Traditional Cat Ass’n, Inc. v. Gilbreath, 118 

Cal.App.4th 392, 13 Cal.Rptr.3d 353, 361–62 (2004); Firth v. State, 98 N.Y.2d 

365, 747 N.Y.S.2d 69, 775 N.E.2d 463, 466 (2002)).

6

With respect to the second factor, the Fifth Circuit relied on the rationale 

behind the widespread acceptance of the single publication rule in the internet 

context, which consisted of the following considerations:

• The “functional similarities” between print and internet publications: “A 

statement electronically located on a server which is called up when a 

web page is accessed, is no different from a statement on a paper page in 

6 The Fifth Circuit found only one case applying “the continuous publication rule,” 

although the Fifth Circuit also stated that case was factually distinguishable because the website 

at issue was a restricted-access database and not a website available to the public. See Belo, 512 

F.3d at 143–44 (discussing Swafford v. Memphis Individual Practice Ass’n, No. 02A01–9612–

CV–00311, 1998 WL 281935 (Tenn. Ct. App. June 2, 1998)).

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a book lying on a shelf which is accessed by the reader when the book is 

opened.” Id. at 144 (quoting Mitan, 243 F.Supp.2d at 724); see also

Kaufman v. Islamic Soc’y of Arlington, 291 S.W.3d 130, 140 (Tex.

App.—Fort Worth 2009, pet. denied) (citing “functional similarities” 

recognized by Belo court as a factor when holding journalist author of 

internet article was “a member of the electronic or print media,” same as 

one publishing through more traditional media, and thus authorized to 

bring interlocutory appeal from order denying summary judgment);

• More importantly, the “potential for endless retriggering of the statute of 

limitations, multiplicity of suits and harassment of defendants” and a 

corresponding chilling effect on internet communication. Belo, 512 F.3d 

at 145 (quoting Firth, 747 N.Y.S.2d 69, 775 N.E.2d at 466); and 

• The fact that application of the rule to internet publications is consistent 

with the policy considerations cited by Texas courts for applying the rule 

to print media: to support the statute of limitation and prevent the filing 

of stale claims. Id. (citing Holloway, 662 S.W.2d at 691).

The Fifth Circuit further rejected arguments similar to those suggested by 

Mayfield in the present case. See id. at 145. Its plaintiff urged that “the 

publication of defamatory and private information on the web has the potential to 

be vastly more offensive and harmful than it might otherwise be in a more 

circumscribed publication.” Id. The court reasoned that the concern more persons

will read internet publications because they are likely accessible for a potentially 

indefinite period is outweighed by the competing policy interest of enforcing the 

statute of limitations and preventing stale claims. Id. (citing Holloway, 662 

S.W.2d at 691). The court also reasoned that the concern regarding broader 

readership (irrespective of the temporal component) is likely relevant only to the 

issue of damages—not to the triggering of the statute of limitations. Id.

Although we are not bound by the Fifth Circuit’s interpretation of Texas 

law, see Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993)

Longview Bank & Trust Co. v. First Nat’l Bank of Azle, 750 S.W.2d 297, 300 (Tex.

App.—Fort Worth 1988, no pet.), or its predictions about what rule The Supreme 

11
Court of Texas likely would apply, we agree with the Fifth Circuit’s reasoning and 

hold that the single publication rule applies to a television station’s news report 

publicly available on the internet. Accordingly, Mayfield’s libel claim for each of 

the two reports at issue accrued on the sole date that the report was broadcast on 

television and posted on the station’s website. Because Mayfield filed suit more 

than one year after each such broadcast and internet publication, her libel claim is 

barred by the statute of limitations.

Discovery rule

Mayfield also suggests, without supporting authority, that the discovery rule 

tolled the limitations period because she was unaware of the reports when they 

were first broadcast and published on the internet. Assuming, without deciding, 

that she sufficiently raised this unpleaded contention in response to appellees’ 

motion for summary judgment, see Butler v. Lowe’s Home Centers, Inc., No. 14–

10–00297–CV, 2011 WL 1709898, at *2–3 (Tex. App.—Houston [14th Dist.] May 

3, 2011, pet. denied) (mem. op.), our court has held the discovery rule does not 

apply when an allegedly defamatory statement is disseminated via the mass media. 

Holloway, 662 S.W.2d at 693. Accordingly, we reject application of the discovery 

rule to toll limitations on Mayfield’s libel claim.

Contention regarding business disparagement claim

Finally, Mayfield contends she asserted a business disparagement claim for 

which the statute of limitations is two years, the discovery rule applies, and the 

single publication rule should not apply. See Dwyer v. Sabine Min. Co., 890 

S.W.2d 140, 142 (Tex. App.—Texarkana 1994, writ denied) (acknowledging 

business disparagement has two-year statute of limitations); see also Tex. Civ. 

Prac. & Rem. Code Ann. § 16.003(a) (West Supp. 2014). As we construe this

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complaint, Mayfield suggests appellees failed to address and prove entitlement to 

summary judgment on one of her causes of action. 

We review a summary judgment based on the pleadings “on file at the time 

of the hearing, or filed thereafter and before judgment with permission of the 

court,” and a claim not pleaded cannot form the basis for reversal. See Tex. R. 

Civ. P. 166(a)(c); Taylor v. Sunbelt Mgmt., Inc., 905 S.W.2d 743, 744–45 (Tex.

App.—Houston [14th Dist.] 1995, no writ); Wakat v. Montgomery County, No. 09-

09-00188-CV, 2011 WL 1224459, at *4 (Tex. App.—Beaumont Mar. 31, 2011, no 

pet.) (mem. op.). We conclude Mayfiled pleaded only a claim for defamation

(more specifically, libel) which is distinct from a claim for business disparagement. 

See Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170 (Tex. 2003). 

The two torts differ in that a defamation action chiefly serves to protect the 

personal reputation of an injured party, while a business disparagement claim 

protects economic interests. Id. A plaintiff seeking damages for business 

disparagement must prove special damages resulting from the harm. Id. If the 

damages alleged are primarily personal and general—e.g., injury to personal 

reputation, humiliation, or mental anguish—then the cause of action is one for libel 

or slander, although incidental or consequential professional losses also are 

pleaded and proved. Williamson, 980 S.W.2d at 710–11. However, if the main 

complaint is a false statement directly injurious to a business interest and the 

damages alleged and proved are limited to business losses, the claim may properly 

be considered business disparagement, although aspects of personal defamation 

may be incidentally involved. See id. at 711.

In Mayfield’s petition, the title of the section pleading her cause of action is 

“Defamation.” She never mentions “business disparagement” in the petition She 

makes only a general, passing reference to potential “financial injury” when 

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pleading the reports were defamatory because they injured her reputation: “All of . 

. . Fullhart’s statements were false and defamatory per se because they were not 

true and injured Mayfield’s reputation and exposed her to public contempt, ridicule 

and financial injury.” Mayfield did not specify any business or property interest 

that was directly injured by appellees’ publications. Then, when requesting 

damages, she alleged, “Mayfield’s good reputation has been severely injured. . . .

Fullhart’s allegations tainted the jury pool and caused Mayfield to suffer mental 

anguish, shame, public embarrassment.” Mayfield requested damages only 

resulting from harm to her reputation and did not request any special damages. In 

fact, in her summary judgment responses, she seemed to acknowledge that she did

not plead a business disparagement claim because she suggested her suit would not 

be barred by limitations if she were subsequently permitted to plead such a claim. 

Therefore, we conclude the pleading contains only a claim for libel. Thus, 

we need not decide whether the discovery rule or single publication rule would 

apply to any business disparagement claim. The trial court did not err by granting 

summary judgment on the ground that the one-year statute of limitations barred the 

libel claim.

Accordingly, we overrule all of Mayfield’s issues and affirm the trial court’s 

judgment.

/s/ John Donovan

Justice

Panel consists of Chief Justice Frost and Justices Donovan and Brown.

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