CROSSOVER: San Antonio Court Reinforces Absolute Judicial-Proceedings Privilege: Defamation Claims Barred for Statements in Pleadings/Affidavits—Malice Irrelevant

McNamara v. Bartolomei, 04-25-00008-CV, March 11, 2026.

On appeal from the 57th Judicial District Court, Bexar County, Texas.

Synopsis

The Fourth Court of Appeals affirmed a take-nothing summary judgment because the appellant failed to challenge every independent ground supporting the trial court’s ruling. Critically, the appellant ignored the judicial-proceedings privilege—an absolute bar to defamation claims based on statements in pleadings/affidavits, even if allegedly false and made with malice.

Relevance to Family Law

Texas family litigation is pleading-heavy and affidavit-driven—temporary orders, TROs, protective orders, enforcement, modification, and sanctions routinely turn on sworn declarations and live-fire allegations. McNamara reinforces two points that matter in every divorce and custody docket: (1) defamation counterclaims based on statements made in filings are usually dead on arrival under the judicial-proceedings privilege; and (2) appellate preservation is unforgiving—if the trial court grants summary judgment on multiple independent grounds, you must attack all of them or you lose automatically. The opinion is a reminder that the most dangerous “family law defamation” exposure often isn’t liability—it’s fee-shifting, distraction, and litigation leverage, because privilege will typically defeat the merits if properly raised.

Case Summary

Fact Summary

McNamara sued his former attorney, Bartolomei (and firm), for defamation per se. The alleged defamation was a statement made in a sworn, court-ordered response filed in a post-conviction habeas proceeding. McNamara contended the response falsely stated he had been “previously convicted” of aggravated sexual assault of a child; he maintained he had only received deferred adjudication and was never adjudicated guilty. He also alleged the statement was made with malice.

Bartolomei answered and sought traditional summary judgment on two affirmative defenses: attorney immunity and the judicial-proceedings privilege. The summary-judgment evidence included the sworn response containing the complained-of statement. The trial court granted summary judgment in a general order (no specified ground) and ordered McNamara take nothing. On appeal, McNamara challenged the attorney-immunity theory and argued malice should defeat the “attorney privilege,” but he did not brief error as to the judicial-proceedings privilege.

Issues Decided

• Whether the court of appeals must affirm a summary judgment when the appellant fails to challenge all independent grounds that could support the judgment in a general summary-judgment order.
• Whether the judicial-proceedings privilege provides absolute immunity from defamation claims for statements made in affidavits/filings in the course of judicial proceedings, regardless of alleged negligence or malice.

Rules Applied

• Unchallenged independent-ground rule (general summary judgment orders): When a summary-judgment order does not specify the ground relied upon, the appellant must negate all grounds asserted that could support the judgment; failure to challenge one independent ground requires affirmance.
• State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex. 1993)
• Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.)
• Britton v. Tex. Dep’t of Crim. Just., 95 S.W.3d 676, 681–82 (Tex. App.—Houston [1st Dist.] 2002, no pet.)
• Judicial-proceedings privilege (absolute bar to libel/slander claims): Communications made in the due course of a judicial proceeding will not serve as the basis of a civil action for libel or slander, regardless of negligence or malice.
• James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982)
• Landry’s, Inc. v. Animal Legal Defense Fund, 631 S.W.3d 40, 46 (Tex. 2021)
• Strickland v. iHeartMedia, 665 S.W.3d 739, 741 (Tex. App.—San Antonio 2023, pet. denied)
• Independence of defenses: Judicial-proceedings privilege and attorney immunity are independent defenses serving independent purposes.
• Landry’s, 631 S.W.3d at 46 (quoting Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 485 n.12 (Tex. 2015))
• Summary judgment review: De novo review of summary-judgment rulings.
• Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017)
• TEX. R. CIV. P. 166a(c)

Application

The court’s decision is fundamentally an appellate-procedure loss—then a merits loss as an alternative holding. Because Bartolomei moved for summary judgment on two independent affirmative defenses and the trial court’s order did not specify which ground it adopted, McNamara had to brief why both defenses failed. He did not. His appellate issues attacked “attorney privilege/immunity” and attempted to inject malice as a defeating fact, but he never assigned error to the judicial-proceedings privilege. Under the unchallenged independent-ground rule, that omission is dispositive: if any unchallenged ground could support the judgment, the court must affirm.

The court then went further: even if McNamara had challenged the judicial-proceedings privilege, he still would have lost. The statement at issue was made in a sworn filing that was part of a court-ordered response in a pending judicial proceeding. Under controlling Texas Supreme Court authority, that type of communication is absolutely privileged against defamation claims. The privilege is not conditioned on good faith, accuracy, or absence of malice. In other words, the “malice exception” argument is a non-starter in Texas defamation litigation when the statement is within the due course of judicial proceedings.

Holding

The court held that when a summary-judgment order is general and the appellee asserted multiple independent grounds, the appellant must challenge every ground that could support the judgment. Because McNamara failed to raise any issue attacking the judicial-proceedings privilege, affirmance was required on that unchallenged ground.

Separately, the court held that the judicial-proceedings privilege would independently support summary judgment on the merits because the allegedly defamatory statement was contained in an affidavit/filing made in the course of a judicial proceeding. Under Texas law, the privilege bars defamation claims regardless of alleged negligence or malice.

Practical Application

For Texas family-law litigators, McNamara is a strategic reminder that “defamation in the pleadings” is rarely a viable claim and is often better treated as a case-management problem than a merits problem. It also underscores that, if you obtain a summary judgment in a family-adjacent tort claim (defamation, business disparagement, etc.) on multiple defenses—judicial-proceedings privilege, attorney immunity, TCPA, limitations—you should push for a general order (or at least ensure multiple grounds are clearly presented), because an appellant’s failure to challenge one ground can lock in affirmance.

Common family-law pressure points where this opinion matters:

• Temporary orders affidavits and TRO/protective-order narratives: Allegations in sworn filings are frequently incendiary; McNamara strengthens the argument that defamation claims premised on those filings are barred by privilege, even if the opponent pleads “actual malice.”
• Enforcement and contempt pleadings: Motions for enforcement often include blunt accusations (nonpayment, denial of possession, harassment). Those written allegations—if in the due course of the proceeding—are typically insulated from defamation exposure.
• Custody disputes with third-party witnesses: Declarations from teachers, therapists, and relatives are common. While privilege analysis can be nuanced at the margins, McNamara supports aggressive motion practice when the claim is framed as defamation based on court-filed statements.
• Appellate posture after summary judgment: If you’re the appellant, inventory every ground. If you’re the appellee, emphasize every independent ground in your briefing and preserve “affirm on unchallenged ground” as the first line of defense.

Checklists

Summary-Judgment Order Triage (Appellant-Side)

• Identify every ground asserted in the motion (and any supplemented grounds).
• Confirm whether the trial court’s order specifies the ground(s); if not, treat it as a general order.
• Brief an issue challenging each independent ground that could support the judgment.
• Include a rule/authority section for each ground (don’t rely on global arguments).
• Address standards of review and preservation for each issue.

Judicial-Proceedings Privilege: Defense Build-Out (Trial Court)

• Pin down where the statement appears (pleading, affidavit, declaration, motion, exhibit).
• Establish the filing was made in the due course of a judicial proceeding (cause number, court order, required response, or live claim).
• Tie the statement to the proceeding’s subject matter (relevance is generally construed broadly).
• Move early: plead the privilege, then pursue traditional summary judgment with the filed document as evidence.
• Anticipate “malice” allegations and cite controlling language that malice is irrelevant.

Family-Law Pleading Hygiene (To Reduce Collateral Warfare)

• Draft allegations to track elements and requested relief; avoid gratuitous character attacks.
• When possible, attribute contested facts (“X alleges…”) and cite record anchors (police report, CPS intake, text messages).
• Use verified pleadings/affidavits only when strategically necessary and ensure factual precision.
• Assume filings will be used as leverage in parallel proceedings (licensing boards, employment, criminal).
• When opposing counsel threatens defamation, evaluate privilege and consider early dispositive motions rather than escalation.

Turning the Tables on a “Defamation Counterclaim” in a Divorce/Custody Case

• Plead judicial-proceedings privilege as an affirmative defense immediately.
• Consider additional defenses (attorney immunity, TCPA where applicable, limitations).
• Seek severance/abatement if the tort claim is being used to derail family-law scheduling.
• Build a record that the statements were made in filings required or permitted by the court.
• Request fees/sanctions only when supported and strategic—don’t create appellate risk.

Citation

McNamara v. Bartolomei, No. 04-25-00008-CV, 2026 WL ___ (Tex. App.—San Antonio Mar. 11, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

Family Law Crossover

In a Texas divorce or SAPCR, this ruling can be weaponized defensively and offensively. Defensively, it supports an early dispositive response to “tort-counterpunching”—when an opposing party files a defamation claim based on allegations in petitions, motions for temporary orders, enforcement pleadings, or sworn declarations. McNamara supplies clean language that judicial-filings privilege is absolute and malice doesn’t matter, allowing you to narrow the fight back to conservatorship, possession, support, and property issues.

Offensively, it can be used to justify more aggressive written motion practice when needed (e.g., to secure protective relief or enforcement) without capitulating to threats of defamation liability based solely on the filing itself—while still counseling disciplined drafting because privilege does not eliminate other litigation risks (credibility findings, sanctions for bad-faith conduct, or evidentiary blowback). The appellate lesson is equally “weaponizable”: when you win on multiple grounds (privilege + immunity + TCPA), you increase the odds that any appeal will fail if the opponent’s brief misses even one independent basis for the judgment.

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