Stephanie Montagne Zoanni v. Lemuel David Hogan ( 2023 )

Opinion issued December 28, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00584-CV
———————————
STEPHANIE MONTAGNE ZOANNI, Appellant
V.
LEMUEL DAVID HOGAN, Appellee
On Appeal from the 246th District Court
Harris County, Texas
Trial Court Case No. 2010-34811-B
OPINION
Appellant Stephanie Montagne Zoanni challenges the final judgment rendered
on a jury verdict in favor of her ex-husband, Appellee Lemuel David Hogan, on his
defamation claim. The jury found Zoanni made thirteen defamatory statements
about Hogan, and it awarded Hogan damages for past and future injury to his
reputation and past and future mental anguish. The jury also found Zoanni made the
statements with malice but it awarded no punitive damages.
Zoanni raises five issues on appeal. In her first issue, Zoanni argues that
because Hogan failed to comply with the Defamation Mitigation Act for nine of
thirteen alleged defamatory statements, this Court should reverse and render in her
favor as to those nine statements. In Zoanni I,1 this Court sustained Zoanni’s first
issue. We reversed and rendered judgment that Hogan take nothing on his
defamation claim based on the nine statements and remanded for a new trial on the
remaining four statements. The Texas Supreme Court reversed the holding of this
Court in Zoanni I, holding the Defamation Mitigation Act did not support a right of
dismissal. The Supreme Court reversed and remanded for this Court to consider
Zoanni’s remaining issues on appeal.2
In her four remaining issues on remand, Zoanni argues that (1) with respect to
damages, the trial court erroneously failed to submit an instruction on mitigation of
damages, there is legally or factually insufficient evidence to support the award of
damages, the damage award is “manifestly too large,” and the award impermissibly
includes punitive damages, (2) part of the judgment improperly penalizes Zoanni for
1
Zoanni v. Hogan, 555 S.W.3d 321 (Tex. App.—Houston [1st Dist.] 2018), rev’d
and remanded, Hogan v. Zoanni, 627 S.W.3d 163 (Tex. 2021) (“Zoanni I”).
2
Hogan v. Zoanni, 627 S.W.3d 163 (Tex. 2021).
2
her opinions, (3) there is legally insufficient evidence that Zoanni published certain
police report statements, and (4) the trial court erroneously excluded testimony based
on the clergy privilege.
We affirm the trial court’s judgment.
Background3
Zoanni’s brief does not comply with the Texas Rules of Appellate Procedure.
Her brief does not contain a statement of facts. She also fails to refer to specific
record cites when addressing some of her appellate issues. See TEX. R. APP. P.
38.1(g), (i) (requiring appellant’s brief to contain statement of facts and clear and
concise argument with appropriate citations to authorities and record). To the extent
possible, we have addressed the merits of Zoanni’s arguments,4 but as discussed
below, we hold she waived some of her issues on appeal.5
3
This section is largely an amalgamation of this Court’s opinion in Zoanni I and the
Texas Supreme Court’s opinion in Hogan v. Zoanni, 627 S.W.3d 163 (Tex. 2021).
4
See Salazar v. Sanders, 440 S.W.3d 863, 872 (Tex. App—El Paso 2013, pet. denied)
(“Appellate courts are required to construe briefs reasonably, yet liberally, so that
the right to appellate review is not lost by waiver, and in so doing, we should reach
the merits of an appeal whenever reasonably possible. At the same time, an appellate
court should not make the appellant’s argument for him because the court would be
abandoning its role as a neutral adjudicator and would become an advocate for the
appellant.”) (internal citation omitted).
5
The failure to provide a substantive and meaningful analysis applying the law to the
facts waives a complaint on appeal. See Encinas v. Jackson, 553 S.W.3d 723, 728
(Tex. App.—El Paso 2018, no pet.) (holding appellant waived argument by
“provid[ing] no citation to authority, nor appl[ying] applicable law to the facts of
the case in support of her second issue”); Marin Real Estate Partners, L.P. v. Vogt,
3
The Filed Lawsuit
Appellee Lemuel David Hogan is an executive pastor at the Spring First
Church in Spring, Texas (“Church”). He and Appellant Stephanie Montagne Zoanni
met at the Church and they married in January 2004. In 2011, they divorced.6 The
trial court signed an Agreed Final Decree of Divorce naming Hogan and Zoanni as
joint managing conservators of Mary, their daughter.7 This appeal stems from the
parties’ post-divorce suit to modify custody of their daughter.
In March 2014, Hogan filed a petition to modify the parent-child relationship.
As part of his petition, Hogan asserted claims against Zoanni for defamation,
invasion of privacy, malicious prosecution, abuse of process, and intentional
infliction of emotional distress. Hogan also requested injunctive relief in the form
of a permanent injunction enjoining Zoanni from communicating with third parties
373 S.W.3d 57, 75 (Tex. App.—San Antonio 2011, no pet.) (“A failure to provide
substantive analysis of an issue waives the complaint.”); San Saba Energy, L.P. v.
Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.)
(“[P]arties asserting error on appeal still must put forth some specific argument and
analysis showing that the record and the law supports their contentions.”).
6
During her marriage to Hogan, Appellant went by the name of Stephanie Montagne
Hogan. After the parties divorced, Appellant remarried Rick Zoanni and she
currently goes by the name of Stephanie Montagne Zoanni. We refer to Appellant
in the opinion as “Zoanni.”
7
We refer to Zoanni’s and Hogan’s daughter using a pseudonym to protect her
identity.
4
about him.8 He alleged that beginning in July 2013, Zoanni started making false
statements about him, claiming he is “a child molester, [a] pervert, [and a]
pedophile.” He alleged that Zoanni falsely represented to third parties, including
Child Protective Services (“CPS”) and law enforcement officers, that he was
“abusing” their daughter Mary, and that he “is a child molester, involved with child
pornography, and otherwise is of poor character and mistreats women and children.”
Hogan alleged that Zoanni made these and other similar statements online, to CPS,
and in written communications to Hogan’s church leadership. In support of his
defamation claim, Hogan identified four alleged defamatory statements made by
Zoanni.
The trial court severed Hogan’s tort claims against Zoanni from the matters
involving custody of Mary. The trial court granted summary judgment in favor of
Zoanni on Hogan’s abuse of process and malicious prosecution claims, leaving only
the claims for invasion of privacy, intentional infliction of emotional distress, and
defamation for trial. Ten days before trial began, Hogan filed a Seventh Amended
Petition, dropping all remaining tort claims against Zoanni except his defamation
8
Zoanni filed a counter-petition. Spring First Church and Hogan’s parents, Robert
and Brenda Hogan, also intervened in the suit seeking a money judgment against
Zoanni for various claims of defamation related to the allegations in Hogan’s
petition. The trial court dismissed the claims in intervention on summary judgment.
Neither Zoanni’s cross-petition nor the claims in intervention are relevant to the
present appeal.
5
claim. In his amended petition, Hogan alleged that Zoanni had made nine additional
defamatory statements about him, some to a police officer at Harris County
Constable Precinct 4, others in email and written communications, and others online.
The case proceeded to trial on Hogan’s defamation claim based on thirteen
alleged defamatory statements. The jury found that all thirteen statements were false
when made by Zoanni. The jury found that six of the statements were defamatory,
and for the rest, it found that Zoanni knew or should have known, in the exercise of
ordinary care, that the statements were false and had the potential to be defamatory.
The thirteen statements were separated and presented to the jury in two
separate parts in the damages portion of the jury charge. Question 10 Part A listed
eight statements and Question 10 Part B listed the remaining five statements. The
jury awarded Hogan $900,000 in compensatory damages for the statements in
Question 10 Part A consisting of (1) $600,000 for past and future damage to his
reputation, and (2) $300,000 for past and future mental anguish. And it awarded
Hogan $1,200,000 in compensatory damages for the statements in Question 10 Part
B consisting of (1) $850,000 for past and future damage to his reputation, and (2)
$350,000 for past and future mental anguish. The jury also found that the statements
were made with malice but awarded no exemplary damages.
6
The trial court rendered judgment based on the jury’s verdict awarding Hogan
$2,100,000 in compensatory damages. Zoanni filed a motion for new trial, which
the trial court denied.
This appeal ensued.
Testimony During the Trial
A. Deputy Kelly Nelson
Deputy Kelly Nelson with the Harris County Constable’s office testified that
she met with Zoanni in July 2013, when Zoanni and her sister, Sarah Montagne,
went to the police station to file a report against Hogan. According to Deputy
Nelson, Zoanni made “allegations of child porn, [and] sexual assault.” When asked
who Zoanni claimed was “involved in child porn,” Deputy Nelson testified, “There
were a couple of names mentioned. One of them was a little girl named [Mary].”
Deputy Nelson clarified that Mary was mentioned in her police report, but not
with respect to child pornography. When asked what Zoanni told her about child
pornography, Deputy Nelson testified, “According to the report that she—she knows
that there’s child pornography going on with [Hogan].” According to Deputy
Nelson, Zoanni stated that she “strongly” believed there was child pornography
occurring.
Zoanni also told Deputy Nelson that she felt Mary may have been sexually
assaulted by Hogan and Mary was afraid to speak up. Zoanni also made allegations
7
about “Hogan having cameras in air vents.” Deputy Nelson testified that Zoanni’s
sister, Sarah, was present when Zoanni spoke to her. Deputy Nelson’s police report
was admitted at trial as Plaintiff’s Exhibit 4 and Defendant’s Exhibit 21.
When asked on cross examination, Deputy Nelson testified she was not aware
Zoanni had concerns about the accuracy of her report.
B. Dr. Joseph Edralin
Dr. Joseph Edralin, Mary’s former pediatrician, testified next. Dr. Edralin
testified that Zoanni and her mother Linda Montagne came to his office in January
2014. He and Zoanni discussed “whether or not [Hogan] was fit to be a parent
because of allegations of pornography.” When asked to describe these allegations,
Dr. Edralin testified, “Pornography, of [Hogan] viewing pornography, and of
possibly observing inappropriately other girls, young girls.” When asked “what kind
of pornography” Zoanni “accused [Hogan] of observing,” Dr. Edralin testified, “It
was about children.” Zoanni did not directly tell him she believed Hogan was
watching child pornography, but according to Dr. Edralin, “it was implied.” Dr.
Edralin immediately became concerned when he heard Zoanni’s allegations and
testified that “if these allegations were true, [Mary] didn’t need to be in that home
and she wasn’t safe.” Dr. Edralin testified that before speaking to Zoanni, he had a
good opinion of Hogan, but after Zoanni made these allegations, his opinion of
Hogan changed for the worse.
8
In February 2014, Mary had an appointment with Dr. Edralin. Dr. Edralin
insisted that Zoanni and Hogan attend, and he wanted Hogan and Zoanni to bring
other family members with them to the appointment. He did this because “there was
concern about [Hogan’s] fitness as a parent and I just did not want this and I’ve been
through enough divorce cases where this becomes a he said, she said kind of situation
and I just wanted as many people in that room as possible to take care of [Mary] to
know how this is going to be.” Zoanni brought her mother Linda and Hogan brought
his mother, Brenda Hogan.
Dr. Edralin spoke to Mary privately and the only problem she reported was
that Zoanni and her boyfriend spoke badly about Hogan. After talking to Mary, Dr.
Edralin testified he had no concerns about Mary’s relationship with Hogan. He then
conducted Mary’s physical examination in the presence of Zoanni, Hogan, Linda,
and Brenda. According to Dr. Edralin, Zoanni was upset about the appointment.
Days after the appointment, Zoanni sent Dr. Edralin a letter firing him as
Mary’s pediatrician. The letter, which was admitted as Plaintiff’s Exhibit 10, stated
in part:
[Mary] will no longer be a patient of STEP Pediatrics… And please,
for the love of God, when you have been informed that a father is a
pedophile and a pervert, do not encourage him to sit in on a meeting
when you are discussing breasts and pubic hair!
On cross-examination, Dr. Edralin read additional portions from the letter. He
testified that Zoanni did not talk to him about Hogan “putting a camera in someone
9
else’s room in an effort to spy on an adult couple having sex” or “removing a fan so
he could look down through a vent into a guest bathroom to see naked young girls.”
He testified, however, that he vaguely recalled Zoanni telling him about Hogan
“confessing [about] spying on women or girls in a changing room at a store.”
C. Stephanie Montagne Zoanni
Zoanni testified next. Hogan’s counsel played excerpts from Zoanni’s
deposition testimony for the direct examination portion of Zoanni’s testimony. On
cross-examination, Zoanni was asked about her deposition testimony.
Zoanni testified that, in the fall of 2004, she and Hogan attended a minister’s
retreat in Corpus Christi, Texas. They were sharing a condo with another couple,
Kim and Pockets Tullos. Zoanni and Hogan arrived at the retreat first. At one point,
before the Tulloses arrived, Zoanni got out of the bath to look for Hogan and she
found him standing in the Tulloses’ bedroom. Zoanni testified:
[H]e had his back to me and he was in the corner and there was an
armoire, I guess, a TV and he had—there was fake foliage on top of the
TV and he was standing up with his arms raised above his head and he
was putting something in the plant and I just stood there.
He didn’t know that I was in the room yet and I just kind of stood there
and watched him for a second and then I said, “What are you doing,”
and he whipped around real fast and I—he had the camera in his hand
and he was like, “Oh, you know, I was playing a practical joke on
Pockets and Kim. I was playing a practical joke,” and I said, “By
planting a camera pointed at the bed in another adult’s hotel room?”
I’m like, “That’s not a joke. It’s not funny.”
10
Zoanni, who was “very upset” and “disgusted” by Hogan’s behavior, believed that
“maybe after he got caught that one time, that it wouldn’t happen again. That’s what
I was thinking.”
She testified about another incident in April 2005. According to Zoanni, she
got out of bed late at night and found Hogan watching a Girls Gone Wild
infomercial. She testified Hogan was “playing it in slow motion and then he would
rewind it and play it again and rewind it and play it in slow motion and I just kind of
watched him watching that” for “only two or three minutes because I couldn’t
stomach it.” Zoanni “called [Hogan] a pervert and locked [her]self in the guest
bedroom.” Zoanni eventually came out and walked into the guest bathroom to
compose herself. She decided to leave with Mary to stay at her parents’ house.
When she tried getting a suitcase from the attic, Zoanni testified Hogan
jumped in front of me and he stood in an X in the doorway and started
freaking out and panicking and he started crying and saying, “I’ll tell
you everything. I’ll tell you. Just let’s just talk about it,” and he was
panicking and refusing to let me into the garage.
According to Zoanni, Hogan told her that
he had been struggling with pornography for a long time. He told me
that he, a few months earlier, had noticed that the exhaust fan in the
guest bathroom had broken. He used that bathroom a lot more than I
did and he told me the fan had broken and he had gone up in a few
months earlier to fix the fan and he said when he took the fan off of the
ceiling grade or the exhaust grade, that he could see straight down into
the bathroom, so he left the fan off of the grate so that he could go up
into the attic and see whoever was in the bathroom.
11
...
He told me that he had seen someone in the bathroom, that he had seen
someone in the bathroom and that it was one of the girls that had stayed
the night with us, I guess it was a few—maybe a few weeks earlier or
maybe even earlier that week. They were in our youth group.
Zoanni testified she later learned that the girl Hogan saw in the bathroom was
her then 14-year-old sister, Sarah. Zoanni found this out the morning after the Girls
Gone Wild incident, when she and Hogan went to his parents’ home. Zoanni
testified that Hogan confessed to his parents, but she did not specify to what exactly
Hogan confessed. Later that same day, Zoanni went to her parents’ home, and she
told her mother, Linda, what had happened.
According to Zoanni, Hogan was “ordered into counseling” by the Church.
Zoanni was questioned about a July 18, 2005 letter written by Hogan, admitted as
Defendant’s Exhibit 1. In the letter, Hogan stated that over the past several months
he had been “struggling with internet pornography” affecting his ability to minister
effectively, and that he had confessed his problem to Zoanni and his Senior Pastor
on May 10, 2005.
Zoanni testified she went with Hogan to Ohio where they received counseling
from Ron Turner as part of Hogan’s rehabilitation. During counseling, Hogan
confessed to watching pornography on the church’s computers and to an incident
that occurred at a local costume store, Danny’s Tricks and Kicks. According to
Zoanni, Hogan reported that when he was at the store “he noticed that some of the
12
dressing room curtains, I guess, weren’t closed all the way, so he could watch women
changing clothes at Danny’s Tricks and Kicks.” Zoanni testified that Hogan
watched the women change and when asked if he did “so to obtain a sexual thrill,”
Zoanni answered, “Yes.” When asked about the type of pornography Hogan
preferred to watch, Zoanni testified, “Voyeurism.” According to Zoanni, that was
“consistent with the other things that were being confessed and learned.”
Zoanni and Hogan divorced in 2011, and she began making the alleged
defamatory statements in July 2013. She testified that at the time, there were a “few
things that caused [her] concern with some interactions that [Hogan] had had” with
Mary and there were also a few other things involving “members of his family.”
1. 2013 Police Report
Zoanni testified that she and her sister Sarah went to the police in July 2013
to file an informational report against Hogan. She denied telling Deputy Nelson that
Hogan watched child pornography. According to Zoanni, she told Deputy Nelson
about Hogan “planting the hidden camera in Corpus Christi,” Hogan’s admission
that he was a “voyeur,” and the incident with Sarah, which Zoanni described as
Hogan going into the “attic and watching a child for his own sexual gratification.”
According to Zoanni, Deputy Nelson inquired whether she had seen any pictures or
videos on any of Hogan’s devices and she responded, “No.”
13
Zoanni testified she did not see Deputy Nelson’s written report until much
later. She testified she was “really upset because it’s just riddled with error.”
According to Zoanni, she called Officer Nelson several times to discuss the report’s
errors, but Officer Nelson never returned her calls. Zoanni, however, spoke to
Detective Russell Ackley to correct the report’s erroneous statements involving
allegations of “child pornography.”
2. Facebook Post - December 30, 2013
Zoanni was asked about a Facebook post she posted on December 30, 2013.
In her post, Zoanni stated: “What a good dad DOES NOT do: He does not spy on
young girls in his youth group going to the bathroom and getting into the shower
through the bathroom air vent in his house (caught and admitted to).” When
questioned about this statement, Zoanni explained she made a mistake when she said
that Hogan was “caught and admitted to” the allegations. She testified:
Well, I think the error was that I said that he was caught and admitted
to. Doesn’t film the young girls like we were talking about earlier. I
knew in my heart that there was something, some reason why he wasn’t
letting me in there; but I shouldn’t have put that I knew that he had done
it or that he got caught and admitted to.
But she testified she still believed Hogan was filming her “little sister when she was
14 through the little air vent,” based on:
Well, I think it’s a lot of reasons. One, because he confessed to the
pornography problem. Another one being that he had confessed to
spying on a young girl in the bathroom. Another one being that I had
caught him trying to plant a hidden camera earlier, and another one
14
being the way that he physically blocked me from going in there to the
stairs where the attic is.
According to Zoanni, she corrected her mistake on the Facebook post before Hogan
requested that she do so.
In her Facebook post, which Zoanni also included in her blog, she implicitly
accused Hogan of engaging in the following conduct:
What a good dad DOES NOT do: . . .
* He doesn’t watch porn at the church office
* He doesn’t get removed from his position supervising youth just
to be added back into a children’s supervisor role a year later by
his parents who he also confessed to
* He doesn’t get banned from carrying a camera on the elementary
school property
* He doesn’t call sex hot lines so much that he has the number
memorized or on speed dial
* He doesn’t take her BRA shopping just after her 9th birthday and
worse it’s never HIS IDEA and he doesn’t pick out padded bras
for her to try on! (And his mom encouraged him to take her???)
* He doesn’t stalk his ex-wife’s boyfriend[’]s MOTHER sending her
messages on FB
* He doesn’t ask [his daughter] to lick his neck
Zoanni testified that she never used the words “child porn” in her blog.
15
3. Statements to Dr. Edralin and Pastor Barker
Zoanni testified about her interactions with Dr. Edralin, beginning with the
time she and her mother visited his office to discuss Mary’s bronchitis. She testified
in part:
We had started talking about some concerns that we had about [Mary]
with her dad and so I told Dr. Edralin what I knew about what had
happened with my sister and the cameras and Dr. Edralin said he
thought the timing was really weird because [Hogan] had just come in
there and talked to him about buying bras for [Mary]. And he felt like
that was odd, and he expressed that to us.
Zoanni testified that Mary’s puberty exam was on February 3, 2014. The following
day, Zoanni created a “Fight for [Mary]” blog. And the day after, Zoanni sent a
letter to “Dr. Edralin letting him know how [she] felt and asking—basically, taking
[Mary] out of his care.”
On February 5, 2014, Zoanni also wrote a letter to Pastor Tim Barker, an
official in the Assemblies of God administration, stating:
Hogan still has severe issues... Please tell me if you think it[’]s right
that a minister who is involved in child porn is put back into a church
as children’s pastor after one year visiting another pastor once a month
and an online course as his rehab??
...
Hogan still has severe issues... There is an open Sex Crimes case with
Harris County Precinct 4, Case Number 13-98077....I filed a report on
him last summer.
16
When asked about her letter to Pastor Barker, Zoanni testified she attempted to
clarify the statement about “child porn:”
In my first—or in that e-mail February 5th, I believe it was, I had
made a comment about, “How do you feel that it’s right that a
person or a minister with—that’s involved in child porn be
placed back into the ministry?”
And after learning that I had not used that term correctly—again,
I’m thinking he’s physically there watching a child for his own
sexual gratification, and in my mind, that’s what that was.
So I used that term in that e-mail and when I learned that that was
not the term, I sent the e-mail back to those exact people and I
said, “I made a mistake. I used this term and that’s not what this
meant and this is exactly what I thought it meant. I was wrong.
I apologize. I’ll tell whoever you want me to tell that I made a
mistake.”
On redirect, Zoanni testified about the incident at the church retreat involving
the Tulloses. She testified she saw Hogan with his hands inside a fake plant on top
of an armoire in the Tulloses’ bedroom, and she saw a small camera in Hogan’s hand
when he turned around to face her. Zoanni also testified about a February 13, 2013
letter she sent to Jim Bradford, the General Secretary of the Assemblies of God,
where she discussed the Tullos incident at the church retreat, catching Hogan
watching the Girls Gone Wild infomercial at their home, Hogan’s alleged
confessions about the attic incident involving Sarah, and Hogan watching women in
a dressing room at a costume store. Zoanni admitted that the comments in her letter
were similar to those she posted on Facebook.
17
On February 12, 2014, Zoanni also emailed Mary’s third grade homeroom
teacher and the school counselor. Zoanni stated in her email:
[Mary] is going back to her dad today and there are some major changes
at her dad[’]s church very soon. He is possibly being removed from his
position along with his parents due to his continuing perversions. She
really wants to talk to you today.
Here is my blog if you want to follow our story.
www.fightfor[mary].typepad.com
On April 3, 2014, Zoanni responded to a friend’s post on Facebook. In her
response, Zoanni stated:
Thank you! My ex husband is suing me for defamation (which it is not)
and trying to take custody of [Mary] and wanting me to pay child
support. He’s also soon to lose his Assemblies of God credentials. My
lawyers told me not to blog or Facebook about him until the lawsuit is
done. I’m sure everyone is wondering where I’ve gone! For custody
purposes the “defamation” lawsuit may hurt me ... we are not sure. But
my ex and his family are fighting like the evil people we know them to
be. I say bring it on!
Zoanni later posted on Facebook that she had started blogging again. Zoanni began
blogging on February 3, 2014, and she admitted she published a blog post daily from
February 3 to February 22, from February 24 to March 3, and another post on March
7, 2014. Zoanni’s blog was admitted into evidence in its entirety.
18
On recross-examination, Zoanni was asked about Marty Burroughs’
deposition testimony:9
Q Did [he] testify under oath, subject to cross-examination, that
[Hogan] confessed to [him] his intent of putting a camera to spy
on Kim and Pockets [Tullos] having sex?
A. Yes, sir.
Q. And did Mr. Burroughs discuss [Hogan] having a problem with
masturbation since approximately the age of 10?
A. Yes, sir.
Q. And with respect to this incident of crawling up in the attic and
spying down through the exhaust fan, [Hogan] was hoping to see
who, according to his admission and his confessions?
A. He said he thought he was going to see [the other girl].
Zoanni acknowledged that some of her statements had the potential to injure
someone’s reputation. She also agreed that the statement in her blog referring to
Hogan as a “confessed voyeur pedophile” could “potentially” injure Hogan’s
occupation and reputation. When asked about the claim she made in her letter to
Pastor Barker, Zoanni testified that a pastor’s reputation and occupation could
“potentially” be injured if someone thought the pastor had a sex crimes case pending
against him. Zoanni also testified she made her allegations against Hogan because
she wanted him to be removed from his position as youth pastor at the Church.
9
Marty Burrough is an ordained pastor in the Assemblies of God Church.
19
Zoanni testified, “I don’t think that anyone that has that kind of sexual interest in
young people should be regularly exposed to them or employed by coming in contact
with them every day.”
D. Amy Hogan
Hogan’s current wife, Amy Hogan, testified next. She discussed the mental
anguish Hogan had suffered and the damage to his reputation resulting from
Zoanni’s statements. Amy testified she learned about Zoanni’s blog from mutual
friends at the Church. When asked whether Hogan had suffered mental anguish,
Amy testified:
Trying to attend school events is always a challenge because we never
know of what parents are aware of, what’s been said, or what’s been
read or told. I know attending [Mary’s] old school, no one spoke to
him whatsoever, completely ignored him, wouldn’t—I mean, even—it
was like very apparent that they all knew what was going on and he was
treated—I mean, completely ignored.
According to Amy, Mary’s teachers and other parents would interact with
Zoanni, but not Hogan and Amy, and at Mary’s prior school, Amy sat alone at a
table because no one wanted to sit with her. Amy also testified that her friends no
longer want to associate with Hogan. She testified:
Being that—I mean, there’s—the church was large, larger back before
all of the blog and so many people have left. We generally can’t go
anywhere without being recognized and avoided and literally talked
about and pointed at through our entire meal. It’s pretty embarrassing.
20
Amy testified that when they wave or say hello to people they have known for years,
“They just look back down at their food and act like they didn’t see us. If [Mary] is
with us, sometimes they’ll acknowledge [Mary].” When asked “what, through your
own eyes, psychologically, you’ve seen that [Hogan] does in order to avoid anything
that someone could use against him and say that he’s a pedophile, a child molester,
or a peeping Tom,” Amy testified that Hogan leaves the bathroom when Amy
showers or undresses and he gets out of bed if Amy’s young daughter climbs into
bed with them.
Amy testified that following Zoanni’s blog, the South Texas District of the
Assemblies of God disallowed Hogan from attending events that involve children
and he was “devastated.” Amy testified that after Zoanni started blogging, people
left the Church and staff quit. When asked if “people believe[d] everything that
[Zoanni] already admitted she lied about,” Amy answered, “Yes.” She testified:
Q. How have you seen [Hogan] react to the people that say horrible,
awful things that should be done to [Hogan]?
A. It’s hard to even believe that people would say these things, just
under the assumption that her blog was accurate. It’s an awful,
awful feeling to know that people are saying that, you know,
he’s—let the inmates deal with him, and [Rick Zoanni] and
whoever the friend was needs to go get friends and find him in a
dark alley and it’s just—it’s very upsetting.
Amy testified that she and other people at the Church got concealed handgun
permits “[b]ecause we were concerned for our own safety. Of the people, of the
21
church, and of our own families, our daughters.” According to Amy, people that
Hogan has known for decades, his high school friends and youth group members he
used to mentor, now ignore him. When asked what she thought Hogan’s “reputation
is in the community right now after Ms. Zoanni’s blog was posted,” Amy testified,
“Ten being the best? A one.”
On cross–examination, Amy testified that the South Texas District of the
Assemblies of God investigated Zoanni’s allegations and afterwards, the District put
some restrictions on Hogan. When asked if she had “ever read [Marty Burroughs’]
five-page statement, Defendant’s Exhibit 7, with regard to what David discussed
with him,” she answered, “No.” She testified she had seen portions of Burroughs’
and Justin Trapp’s10 depositions:
Q. And the portions that you watched, did they include the part
where Mr. Burroughs and Mr. [Trapp] confirmed that [Hogan]
confessed to them that camera in Corpus Christi on Kim and
Pockets Tullos and [Hogan] confessed to them that he went up
into the attic, he noticed he could remove the fan and look down,
and he went up into the attic to see [the other 14-year-old girl]
get undressed and take a shower?
A. No.
10
Justin Trapp was the Assistant Youth Pastor at Spring First Church in May 2005,
when Hogan was the Youth Pastor.
22
On redirect, Amy testified that Rev. Joseph Granberry, who had been the
Superintendent of the South Texas District of the Assemblies of God in 2005, is her
grandfather, and she spoke to him about Hogan.
E. Robert Martin
Robert Martin testified that he was on the Church’s board when the Church
decided to reinstate Hogan and hire him back as Youth Pastor. Martin understood
that Hogan had left his position because of pornography and “it was not child
pornography.” He discussed what he perceived to be the damage to Hogan’s
reputation resulting from Zoanni’s allegations:
Q. How would you say, on a scale of one to ten, before any
accusation that Ms. Zoanni had made about David Hogan, would
there be any reason you’d say anything less than ten?
A. Not at all.
Q. What about when those first letters she started throwing to the
Assemblies of God, accusing him of being a pedophile? Did that
hurt his reputation?
A. It did.
Q. Hurt his occupation?
A. It did.
Q. What about when that blog started?
A. It was terrifying. It rippled through the whole church. It affected
every ministry in the church. People began to leave. Families
began to separate. My own son and his daughter took their kids
out of youth and left the church because they didn't want to wait
to determine if there was—if there was truth in the blog. They
23
didn’t want to take the chance that their children would be hurt.
So they left.
According to Martin, people did not want to work with Hogan because of Zoanni’s
accusations and several employees quit:
Q. Mr. Martin, on a scale of one to ten, how do you believe that
[Hogan’s] reputation is in the community, based on the
accusations of child pornography, pedophilia, and even sexually
assaulting his own daughter, have been on his reputation?
A. Right now his reputation is one. Low. It’s zero.
According to Martin, Hogan “can’t go anywhere without running into someone that
knows about it, has read the blog, has heard about it from the church. So his
reputation has been pretty much shot.”
On cross-examination, Martin testified that Burroughs was the South Texas
District’s Youth Director in 2005, and he agreed that “for a period of time when
[Hogan] was youth director, he reported, obviously, to his mother and father, Sr.
Pastor Hogan and Brenda Hogan.” When asked if Hogan reported to Burroughs,
Martin testified, “He didn’t really report to him, but [Burroughs] kind of directed all
the youth activities at the district level.” Martin testified that he read the statements
Burroughs and Trapp gave to the Church, but he did not believe they were accurate.
F. David Hogan
Hogan testified about Zoanni’s statements and the impact her allegations had
on his emotional well-being and reputation. When asked about the attic incident,
24
Hogan testified that when he went up into the attic to retrieve a suitcase, he looked
over at the vent for five seconds:
When I looked over, you could see that the light was on. You could see
light coming through between the—between the sheetrock, I guess, and
the vent fan. There’s very small amount of daylight, and you could see
that there was somebody in there. I could see the top of somebody’s
head but could not make out who that was.
...
Q. You didn’t stay there and spy and watch her like the voyeur that
they’ve said you have been?
A. No, sir.
Q. You didn’t go up there to masturbate on the staircase?
A. No.
Hogan testified:
The first time that I heard that I was up there masturbating was that, I
believe in one of the police reports that got turned over to CPS stating
that [Zoanni] stated in that report to the CPS agent that I was—that I
had confessed to her that I was masturbating to the video footage, which
is ridiculous because there was never a video camera up there ever and
I had never confessed anything like that to her. It was a completely
bogus story.
With respect to the camera Zoanni claimed Hogan attempted to place in the
Tulloses’ bedroom, Hogan testified the camera “does not record at all.” It requires
a “secondary monitor to be able to produce a picture.” Hogan never got the camera
to work.
25
When asked about the incident at the costume store, Hogan testified the store
had two changing rooms that were “kind of covered by—it’s not like a door you go
in and close; it’s curtains that you have to pull closed.” He testified:
As I walked by, [the woman] had left maybe a 6-inch gap in that curtain
but the mirror there, you could see her and I immediately went over to
the friend and said, “Hey, you should probably close the curtain. I think
you can see in it a little bit,” and she’s like, “Oh, my goodness, thank
you,” and she closed the curtain and that was the end of it.
According to Hogan, the incident lasted no more than ten seconds. “When I noticed
it, I immediately went over and told the woman.”
On cross-examination, Hogan testified he started watching pornography in
college and he continued to do so while married to Zoanni. He also admitted
describing himself to Ron Turner in June 2005 “as habitual with regard to
pornography.” He admitted that during the first year and a half of his marriage to
Zoanni, he would watch pornography on the Church’s computers. When asked
about the incident at the church retreat involving the Tulloses, Hogan testified he
“would have never set up the camera with the intention to record them having sex.
It would have been physically impossible to record them.” He explained that as he
. . . began to talk to the higher-ups in the Assemblies of God, [Zoanni]
was with me and she wanted this story to be on the record as well and
I think I ended up confessing this whole story to about nine different
people through the process of the Assemblies of God with regard to
having ministerial credentials or being ordained. At no time did
anybody feel like it was necessary to inform Kim and Pockets Tullos.
Specifically, Reverend Joe [Granberry] and Marty Burroughs didn’t
feel like it was needed since nothing ever happened; and I’d only agreed
26
to that at some point when I had the camera, it had crossed my mind to
use it for an improper purpose but have never acted on that or recorded
anyone.
Q. What was the improper purpose that crossed your mind to use
the camera for?
A. When [Zoanni] came into the room and asked me what I was
doing, she said, “Were you thinking about setting up this camera
so you could see Pockets and Kim,” and I said, “Well, that was
not my intention. That’s not why I was playing with the camera
in here, trying to get—to see if it worked but that did cross my
mind but I would never do that,” and, obviously, she was very
upset and then to this day has just kind of beat the drum that that
was my intention and that’s the sole purpose of what I was doing
with that camera.
Q. You said you talked to Marty Burroughs. Didn’t you confess to
Marty Burroughs that was your intent?
A. No, sir.
Q. Didn’t you confess to Justin Trapp that was your intent?
A. No, sir.
Hogan admitted watching the Girls Gone Wild infomercial and seeing similar
commercials before. As to the incident in the attic, he testified:
Q. [S]ee where it says “[Hogan] denied all charges of ever viewing
a minor without clothes on. He did confess that years ago he did
have temptations in this area but never acted on it, only tempted,”
correct? You see that?
A. Yes, I do see that.
27
Q. Is that an accurate report by Mr. [Don] Wiehe?11
A. I did deny all charges of ever viewing a minor without clothes
on.
Q. Okay. Did you confess temptations in the area?
A. Yes, I told him this story about—about the attic that I had
disclosed to them. He was referring to this story.
...
Q. So then tell the jury how that five-second, inadvertent, accidental
glance instituted in your mind a temptation.
A. I don’t think the temptation was at that point. The reason I
disclosed it to [Zoanni] and to my parents and to Pastor Joe
[Granberry], who’s the district superintendent, was to make sure
that I didn’t ever have the temptation to ever go back up there at
another point in time.
...
Q. Okay. And with Marty Burroughs, I believe you went to see
Marty Burroughs—is it the next day? Let’s back up. There’s the
viewing in the attic, whenever it is, there's the Girls Gone Wild
episode, [Zoanni] says you discussed the attic with her that night,
you say you discussed it the next morning with your mom and
dad?
A. Correct.
Q. Do you talk to Marty Burroughs next day after talking to mom
and dad or the following day?
A. Both.
11
Don Wiehe was the Secretary Treasurer of the South Texas District Executive
Presbytery in 2014.
28
Q. Both. Good enough. And the subject came up, but you never
discussed the details with Marty Burroughs; that’s your
testimony, correct?
A. On which day?
Q. Either day.
At that point, Hogan’s counsel interjected:
Judge, it’s already been discussed and we already have our trial
objection to any discussions with Marty Burroughs as a privilege with
clergy. We’ve already written a brief on this. He’s well aware of the
fact that we’re claiming that it’s part of a privilege under clergy. It’s
stated in the deposition. So, ultimately, any of these questions that he's
asking, he has to be able to have him waive it and he’s never waived it
and he’s always asserted the clergy privilege.
The trial court did not rule on the objection. Rather, Zoanni’s counsel stated he
would “move to something else right now and come back to it.”
When asked about the police report Zoanni filed, Hogan testified:
When I read that, I didn’t know that she had gone to the police until
right after she started blogging. I saw–I got ahold of the letter, I think,
that she wrote to either [Pastor] Tim Barker or James Bradford talking
about there was an open sex crimes case.
Hogan also testified about the impact Zoanni’s allegations had on him.
According to Hogan:
[Zoanni] released that Facebook post on the 29th of December in 2013.
I think that was the first thing that went public. And it was—it was
immediate. And then when she started the blog, I mean, within—within
just a couple of weeks, I mean, the [Church’s] attendance numbers were
just devastating. It was hard to even walk—me and my mom and dad,
you know, sit on the front row because, you know, all of our pastoral
staff stands on the front row. We would walk in, and we were looking
29
around to see who we weren’t going to see in the congregation the next
week.
After the blog, people also began acting differently towards Hogan:
I was at dinner last night at a restaurant in The Woodlands and we were
at Longhorn Steakhouse and some people walked in from our church
named Ralph and Peggy Allen. I’ve known them since I was 5 years
old and grew up with their son, and they had gone to our church forever
until [Zoanni] started blogging and he even began to comment on the
blog that he believed every word. It caused a problem in their family
because Peggy Allen, she was kind of on the fence and wanted to still
be coming; and, eventually, they’re not involved at all.
They walked in, walked right past us, saw us, wouldn’t even look at us
after that. It’s still ongoing. It’s not changed one bit.
Hogan described these encounters as “awful” and a “regular occurrence.”
Hogan testified that “especially when the blog was continuing to go on, I was
afraid to walk anywhere in public and afraid that you’d see somebody you know,
just to see how they’re going to respond to you.” Hogan also expressed concern that
Zoanni’s blog and Facebook page were online at the time of trial. According to
Hogan, he spent many sleepless nights after Zoanni began blogging. When asked if
there were any days when he did not want to get out of bed in the morning, Hogan
testified:
Absolutely. Every day. Just didn’t want to have to see anybody, didn’t
want to have people questioning about it, didn’t want to go to work.
You know, the weeks I have [Mary], I mean, just did the best I could to
not try to let her see those emotions outwardly; but inside, just gut-
wrenching.
30
Hogan testified that while Zoanni was actively blogging in February and
March 2014, “the anticipation, I guess, of wondering what’s she going to say today,
what new thing is going to be in there that’s inaccurate, and the anxiety that comes
along with that is overwhelming.” According to Hogan:
Because every time something new gets added to it, people start calling
the church, people start texting my mom and dad; and every day it’s
just the sense of panic that goes over you like, what are you going to
do? There’s no—it’s [a] very hopeless and helpless feeling that is
physically overwhelming.
When asked if he felt physically sick because of the allegations Zoanni made in her
blog, Hogan testified:
Absolutely. Trying to think of a way to describe the anxiety when—
maybe the sick feeling that like if you get—when you get pulled over,
if you’re speeding or something like that, if you’ve ever had that feeling
if your heart is racing of, you know, what’s going to happen, where you
just have this like gut-wrenching feeling of—I don’t know how to
explain it but it physically makes you feel ill and it doesn’t go away.
It’s not like it subsided. I went to bed feeling that way, wake up in the
middle of the night and you’re—I remember so many nights waking up
in the middle of the night and thinking, Please tell me this is just a bad
dream, and then realizing this is my reality every single day.
According to Hogan, the “statements [Zoanni] made in [her] blog have
systematically ruined my life, privately and professionally.” When asked if “anyone
has complete trust having you as a pastor or even when they see you out in public
anymore,” Hogan testified, “No. You can’t unring that bell. There will always be
the wonder.” Hogan testified that before Zoanni began blogging, he was very proud
of his name, but afterwards, he worries how people will react when he tells people
31
his name is “David Hogan.” He also testified that he attended a political event a few
weeks before trial and “the people that were checking me in used to go to our church
and jokingly, thinking, I guess, that it’s funny at this point, refer to me as Chester.”12
When asked how he felt when it happened, Hogan testified:
Well, it’s awful. Because then you’re thinking, you know, these people
have like read all of this stuff that’s untrue. And then another part of
my life that I really enjoy and feel a duty to be involved in, you know,
with my, I guess, political beliefs and want to be able to be involved
with my community in that way and then thinking are these people then
sharing that information with everybody else in Senate District 7?
According to Hogan, “Being called a pedophile, whether you are or aren’t, is
incredibly damaging to your reputation; and I can tell you that firsthand.”
Hogan testified that he and Amy got permits to carry concealed handguns for
“her personal safety, first of all, but since this, although this stuff came out on this
blog, I have regularly feared for my own safety.” He testified people left dead animal
parts on his front porch for about two months and that people tried breaking into his
home. Hogan testified that Mary found the blog when she was at school and, in
addition to worry about what the information in the blog would do to Mary, he was
worried about the blog being available online because others could use it to make
fun of Mary or bully her.
12
Zoanni referred to Hogan as “Chester” in her blog. On re-direct examination,
Zoanni testified, “I was listening to your question and the definition of Chester. I
don’t know what it means but I’ve heard the connotation of Chester the Molester
before, but I was not using that to say that [Hogan] is a molester.”
32
When asked about the letter Zoanni wrote to Dr. Edralin, Hogan testified that
Dr. Edralin’s staff also read the letter. When asked if he could “name anybody out
there that thinks less of you because of” the letter, Hogan testified, “I know some of
the names of the other doctors up there that read it, so yes.”
Hogan was also asked during cross-examination about Zoanni’s February
2014 email to Pastor Barker. Hogan agreed that “the only people that read [the
email] were in the Assemblies of God hierarchy.” When asked to “[n]ame one
person in the Assemblies of God hierarchy who thinks less of you today because of
that February 5, 2014, letter,” Hogan identified James Bradford, George Wood,
Charles Crabtree, and “[t]he entire executive presbytery of the general counsel.”
“That would be about 75 people.”
Hogan was also asked about Zoanni’s Facebook post in which she stated,
“Growing concerns for my baby girl! . . . What a good dad DOES NOT do: He
doesn’t film young girls in his youth group going to the bathroom and getting into
the shower thru the bathroom air vent in his house (caught and admitted to) . . .”
When asked how many people had seen the post during the seventeen to twenty-four
hours before Zoanni revised it,13 Hogan testified, “it was a public post, and it was
being shared and liked and commented on. There’s no way for any of us to cap that
number on how many people.” When asked if he could identify any of those people
13
Zoanni replaced the word “film” with “spy” in the post.
33
by name, Hogan responded, “I’ve got names.” When asked if he could “name one
person who thinks less of you because of the word ‘filmed’ in that post,” Hogan
testified, “My answer would be all of them.”
G. Detective Russell Ackley
Detective Ackley works with the Harris County Sheriff’s Office, Special
Victims Unit, FBI Child Exploitation Task Force. Deputy Nelson’s police report
was forwarded to Detective Ackley, who reviewed the report. Detective Ackley
stated in his report:
After reviewing this case, I, Deputy R. Ackley . . . contacted CPS
Intake. In regards to the CPS report, I was told that the case had been
closed at Intake, due to the child not making any disclosure.
Further, after reading the report, there is no physical evidence, due to
the wife not seeing any child pornography, to support any type of
further action.
No further Information. Case closed.
In a supplemental report, Detective Ackley stated:
On Tuesday, September 2, 2014, I went and was deposed in this case
for civil/family matters. During the deposition, notice was made that
[Zoanni] wanted to recant or clarify the allegations that were made
when the original report was made.
On Wednesday, September 3, 2014, I received an email, as well as a
voice message, that [Zoanni] wanted to have the report clarified. . .
A portion of Detective Ackley’s deposition was also played for the jury.
34
H. Justin Trapp
Justin Trapp was the Assistant Youth Pastor at the Church in May 2005, when
Hogan was the Youth Pastor. Trapp, who grew up in the Church, has known Hogan
since Trapp was 11 years old. When asked about Hogan’s reputation for the truth,
Trapp testified, “I would say maybe gray area. . . Bendable or relative, I guess.”
Trapp was interviewed by the Assemblies of God during an investigation of
Hogan. He testified that Marty Burroughs did not interview him, but he spoke to
him about these incidents.
Trapp prepared a two-page statement requested by the Church. In his
statement to the Church, admitted as Defendant’s Exhibit 3, Trapp stated he took his
girlfriend to the theatre one evening in May 2005. When he turned his cell phone
back on hours later, he had several voicemails informing him that Hogan, who “had
a last minute emergency,” had been unable to attend the Church’s weekly youth
service that evening. Trapp was confused by this development, and called Zoanni
during his drive home. According to Trapp, Zoanni was upset, and she asked Trapp
if he knew that Hogan “had a problem with pornography.” Trapp told Zoanni that
he had “wondered after finding porn on his computer one day but quickly dismissed
thinking it must have been the janitor.” Zoanni told Trapp about the incident
involving the Tulloses and Hogan’s purported confession about spying “on
35
[Zoanni’s] sister Sara[h] while she was going to the bathroom from the attic.”
Zoanni told Trapp that “[Hogan] had struggled with porn from time to time.”
Trapp testified that within a few days, Hogan came to see him at his office.
Trapp told Hogan he “found porn on his computer and [Hogan] admitted he thought
I knew he had a problem all along.” With respect to the incident involving the
Tulloses, Hogan “said he didn’t know what he was thinking and had no excuse.”
And as to the attic incident, Trapp testified Hogan told him he “figured out that he
could look through the vent in the bathroom” and “only looked at Sarah while she
went to the bathroom” and he “knew it was wrong.” Hogan told Trapp “he needed
help and that he thought I would be best to replace him as youth pastor.”
On cross-examination, Trapp testified he had read Zoanni’s Facebook posts
and blog and he knew other people who had read the blog as well. He admitted that
when Zoanni worked at the Church, there were “some work issues where she hadn’t
been honest with [him].” Trapp, who replaced Hogan as Youth Pastor when Hogan
stepped down in 2005, became involved in the Church’s investigation of Hogan
when Zoanni asked him to write an official letter to the “National Assemblies” of
“what [Hogan] told” him.” According to Trapp, he, Zoanni, and her family met with
the State Assemblies of God.
Trapp was asked about the impact some of the allegations Zoanni made
against Hogan would have on someone. Trapp testified that if someone accused him
36
of being involved in or in possession of child pornography, it would damage Trapp’s
reputation, make it difficult for him to continue to be a minister, and cause him
anxiety and mental anguish. When asked how it would affect him if everyone at his
child’s daycare knew about the allegation that he was involved in child pornography,
Trapp testified that it would change his interactions with the people at the daycare
and cause him anxiety. Trapp agreed that it would also damage his reputation and
cause him mental anguish if someone accused him of molesting his child or being a
pedophile.
I. Sarah Basset
Sarah is Zoanni’s younger sister. Sarah testified that she and Zoanni went to
the Harris County Police Department to file a statement in 2013. She testified she
“was aware at this point that [Hogan] had issues with voyeurism, me being one of
the victims as a minor,” and they “wanted to file a statement, just to have it on record
of what he did to me when I was a minor at 14 years old:”
We told the officer of the knowledge that [Zoanni] had of what [Hogan]
had done to me as a minor; and after that was over, the officer had asked
[Zoanni] has [Mary]—because we mentioned [Mary] getting older—
has [Mary] ever said anything about [Hogan] doing anything to her, and
we both said no.
...
So I interrupted [Deputy Nelson]; and I said, “Look, all we’re saying in
regards to that, from [Hogan] having an issue with minors, is that if you
had a search warrant and he didn’t know you were coming into his
37
house and you came in, I would not be surprised if you found child
pornography.”
Sarah denied that Zoanni accused Hogan of having child pornography during that
meeting and she testified that the “only time the words came out of anyone’s mouth
was my own, and I didn’t even accuse him. I said I wouldn’t be surprised.”
When asked what she knew about Hogan in 2005, Sarah testified:
Q. And what you heard back then was that he had watched
pornography, right?
A. Yes.
Q. You knew that he had resigned his position, stepped down from
his position for a year, right?
A. Yes.
Q. And that during that time you and—your sister and he had both
gone off to counseling in Ohio and then came back here and met
with a counselor for about a year after that, right?
A. Yes.
According to Sarah, “the State board actually reinstated [Hogan] and put him back
in [the Church] and gave his credentials back in full standing.”
J. Linda Montagne
Linda Montagne, Zoanni’s and Sarah’s mother, testified about Zoanni’s
conversation with her concerning Hogan’s alleged confession involving the Girls
Gone Wild informercial and Sarah. Zoanni told her that when she tried to get her
suitcase from the garage after discovering Hogan watching the Girls Gone Wild
38
infomercial, Hogan “stood in front of her and the way she described it is he had his
arms way up in the air and his legs spread like an X and he wouldn’t let her through
the door.” According to Linda, Hogan told Zoanni he had “things I need to tell you”
and “he started to confess things to [Zoanni]” involving the attic incident with Sarah.
Linda also discussed the events with Dr. Edralin. According to Linda, Dr.
Edralin told her and Zoanni he was concerned for Mary because Hogan had
scheduled a “puberty check appointment” for Mary and he had been asking Dr.
Edralin questions about “bra shopping” for Mary. Dr. Edralin told Linda and Zoanni
that he thought it was “very unnatural for a father to have such interest in his young
daughter’s physical development in that way.” According to Linda, Dr. Edralin gave
Zoanni the phone number of his attorney and told Zoanni that she needed to get
custody of Mary.
K. Kevin Montagne
Kevin Montagne, Zoanni’s and Sarah’s father, testified that after Linda and
Zoanni told him about Hogan’s misdeeds and confession, he spoke to Hogan
privately:
It was just the two of us in the room; and as we sat there, he was very
broken. There was a lot of tears between the two of us. Very
remorseful. And he said that he had looked down the vent in the
bathroom to see and saw my daughter, my young daughter, Sarah, who
was 14 at the time.
39
When asked if it was his understanding that Hogan had “intentionally planned his
peeping activity,” Kevin testified, “There was no doubt in my mind that it was
planned when he told me that he thought it was going to be [another] person, the
other girl.”
The Jury’s Verdict
The case proceeded to trial on Hogan’s defamation claim based on thirteen
alleged defamatory statements. The jury found that all thirteen statements were false
when made by Zoanni. The jury found that six of the statements were defamatory,
and for the rest, it found that Zoanni knew or should have known, in the exercise of
ordinary care, that the statements were false and had the potential to be defamatory.
The jury awarded Hogan compensatory damages for past and future damage
to his reputation and past and future mental anguish. Because the jury unanimously
found that Zoanni had acted with malice, the trial court held a separate trial on the
issue of punitive damages. After hearing testimony from Hogan’s mother, Brenda,
and Zoanni, the jury awarded Hogan $0 in punitive damages. The trial court
rendered judgment pursuant to the jury verdict and awarded Hogan a total of
$2,100,000 in actual damages consisting of (1) $1,450,000 for past and future
damage to his reputation, and (2) $600,000 for past and future mental anguish.
Zoanni filed a motion for new trial, which the trial court denied.
This appeal followed.
40
The Defamation Mitigation Act
In her first issue, Zoanni argues that because Hogan failed to comply with the
Defamation Mitigation Act (“DMA”) with respect to nine of the thirteen alleged
defamatory statements, the judgment should be reversed and rendered in her favor
as to those nine statements. In Zoanni I, a different panel of this Court sustained
Zoanni’s first issue. See Zoanni v. Hogan, 555 S.W.3d 321, 331 (Tex. App.—
Houston [1st Dist.] 2018), rev’d and remanded, Hogan v. Zoanni, 627 S.W.3d 163(Tex. 2021).14 This Court concluded that under the DMA, a request for correction
is a necessary predicate to submit each alleged instance of defamation to the jury
and that because Hogan had not issued a correction request for nine of the thirteen
statements and the deadline to comply had expired, dismissal of the defamation
claim as to the nine statements was required. Zoanni I, 555 S.W.3d at 327. The
Texas Supreme Court reversed this Court’s opinion holding that if a “plaintiff fails
to provide the necessary request [under the DMA] and a defendant timely files a plea
in abatement, the suit must abate until the plaintiff responds with a written request.”
Hogan, 627 S.W.3d at 176. The Supreme Court held that the “plain language of the
[DMA] does not support a right to dismissal for failing to provide a sufficient request
before the statute of limitations expires.” Id. at 176–77. The Supreme Court
14
The panel consisted of Justices Jennings, Massengale, and Caughey. Justice
Jennings dissented to Justice Caughey’s majority opinion.
41
reversed and remanded for this Court to consider Zoanni’s remaining issues on
appeal.
In her four remaining issues on remand, Zoanni argues that (1) with respect to
damages, the trial court erroneously failed to submit an instruction on mitigation of
damages, there is legally or factually insufficient evidence to support the award of
damages, the damage award is “manifestly too large,” and the award impermissibly
includes punitive damages, (2) part of the judgment improperly penalizes Zoanni for
her opinions, (3) there is legally insufficient evidence that Zoanni published certain
police report statements, and (4) the trial court erroneously excluded testimony based
on the clergy privilege.
Clergy Privilege
Zoanni argues in her fourth issue on remand that “the trial court erroneously
excluded the testimony of Rev. Marty Burroughs and his statement to the church
based on the clergy privilege.” We hold that even if the trial court erred in excluding
Burroughs’ testimony, the error was harmless.
A. Standard of Review and Applicable Law
Texas Rule of Evidence 505, “Privilege For Communications to a Clergy
Member,” states:
(a) Definitions. In this rule:
(1) A “clergy member” is a minister, priest, rabbi, accredited
Christian Science Practitioner, or other similar functionary
42
of a religious organization or someone whom a
communicant reasonably believes is a clergy member.
(2) A “communicant” is a person who consults a clergy
member in the clergy member’s professional capacity as a
spiritual adviser.
(3) A communication is “confidential” if made privately and
not intended for further disclosure except to other persons
present to further the purpose of the communication.
(b) General Rule. A communicant has a privilege to refuse to
disclose and to prevent any other person from disclosing a
confidential communication by the communicant to a clergy
member in the clergy member’s professional capacity as spiritual
adviser.
(c) Who May Claim. The privilege may be claimed by:
(1) the communicant;
(2) the communicant’s guardian or conservator; or
(3) a deceased communicant’s personal representative.
The clergy member to whom the communication was made may claim
the privilege on the communicant’s behalf—and is presumed to have
authority to do so.
TEX. R. EVID. 505.
B. Offer of Proof: Rev. Marty Burroughs
Zoanni made two offers of proof during the trial. One of them involved
testimony from Rev. Marty Burroughs, a Pastor with the Assemblies of God Church.
Burroughs testified that he has known Hogan since Hogan was 12 years old.
43
Burroughs served as Hogan’s Youth Pastor when Hogan was a teen. Burroughs
considered Hogan his protégé.
In 2005, Burroughs was working in the Church’s district office as the District
Youth Director when Hogan called and asked to meet with him. Burroughs testified
that after he spoke with Hogan, Burroughs informed Hogan that their discussion was
“private but not secret.” Burroughs also told Hogan that Hogan “would have to tell
the board of the church and [Hogan] would have to tell the district . . . officials
because . . . I wasn’t the official to be told.” Burroughs also testified that he did not
report his conversation with Hogan up the chain in the Assemblies of God initially
because he “made sure that [Hogan] did.” According to Burroughs, Hogan made a
confession to Rev. Joseph Granberry, the District Superintendent. Burroughs
testified that he “followed up to make sure that [Hogan] told the whole story because
he doesn’t ever tell the whole story.”
The trial judge questioned Burroughs about the nature of his conversation with
Hogan:
Q. Mr. Burroughs, your discussion with [Hogan], what was the
discussion about?
A. First it was about the pornography and I just kept feeling like
there was more and he kept, I guess, saying more.
Q. He kept saying more or you were asking him?
A. I was asking and he was telling me, you know. Just kept feeling
like there was more, and so he said that—
44
Q. So what did he confess to you without prompting?
A. That he got—that [Zoanni] walked in on him watching and
rewatching the Girls Gone Wild commercial and she flipped out
and went screaming to the bathroom and, you know, at this point
I’m thinking this is a really minor thing and then—I don’t know
if I said it or what happened next or, you know, she came out of
the bathroom, ran towards the garage and he stopped her there
and said, “No, I’ll tell you. I’ll tell you.” And so I guess he told
her then that he had, I guess, gone up into the attic and looked
into the bathroom and I—
Q. And you don’t remember if this story. . . came out because you
prompted him or he was completing the story after the Girls
Gone Wild?
A. I would say it would be because I was asking him, you know,
what else because it seemed like such a major case for
something—not so major. And it kept being more.
1. Burroughs’ Statement to the Assemblies of God
Burroughs provided a statement to the District Office for the Church, which
was not admitted at trial. When asked about this statement during the offer of proof,
Burroughs explained that “this statement here was requested of me by the district
office” when they began “reinvestigating” Hogan in 2014. In his statement to the
church, Burroughs reported:
[Hogan] told me that his wife, [Zoanni], had walked up behind him in
the living room and had caught him watching and re-watching a “Girls
gone wild” commercial. It was not porn but just barely not porn. He
said that he was playing it, pausing it, and replaying it over and over.
...
He said that he told her that he had a problem with porn for a really long
time and it would get better then worse.
45
...
He then began to tell me the story of how he had taken a little security
system camera that he and I had bought while on a missions trip to
Hong Kong and he had attempted to use it to video/spy on Pockets and
Kim Tullos. This was done at the Port Royal Condos on Mustang
Island during a Speed the Light Bike-A-Thon. [Hogan] & [Zoanni]
were sharing a 2 bedroom condo with his college roommate Pockets
and his wife Kim. [Hogan] said that he and [Zoanni] had gotten there
early and she had gotten in the bathtub to help with her morning
sickness. It was while [Zoanni] was in the bathtub that [Hogan] said he
was trying to setup the camera in the bedroom of Pockets and Kim. He
said that [Zoanni] walked in on him and caught him setting up the
camera. He said that he told her that he was doing it as a prank, but she
didn’t believe him and I didn’t either at this point.
I asked “is there anything else?” “Yes” he replied and then he told me
that one time, when he was putting some stuff in his attic, he realized
that he could see into the guest bathroom through the air vent or exhaust
fan, I don’t remember which. He said that one time when some of the
girls from his youth group were there he climbed up into the attic, which
was only accessible from the garage, with the intention of looking at
them as they used the bathroom. He said that he intended to see [a
female youth group member] but instead the girl in the restroom was
Sarah Montagne. Sarah was [Hogan’s] sister in law, [Zoanni’s]
younger sister, and at the time of this event she was 14 years old.
He said that he had never did that again but I at this point I did not
believe that he was telling me the whole truth. It was also at this point
that I realized that he would not be able to stay on the church staff in
any position and that he needed a lot of help. My thoughts were simple
that viewing porn is very wrong but attempting to video your friends in
their private hotel bed and climbing up into the attic to spy on young
girls using the restroom is a whole other level of messed up.
2. Burroughs’ Deposition Testimony
In his deposition, Burroughs testified that Hogan “came to me as his overseer
in a spiritual way, not necessarily in—legally his overseer, and confessed.” In
46
addition to the Girls Gone Wild incident and Hogan’s problem with pornography,
Hogan also confessed that “he had climbed up into the attic to see them in the
bathroom, to see [a 14 year-old female youth group member] in the bathroom, . . .
but it wasn’t [her] that ended up going into the bathroom, . . . it was Sarah.” Hogan
told Burroughs that he had previously “put some luggage away [in the attic] and he
noticed that he could see in the bathroom from the air vent.” Hogan also told
Burroughs that “he had taken a camera and had put it. . . I guess in the plastic plants
in his friends’ room, which it was a couple that was sharing that room.” According
to Burroughs, Hogan did not tell him that he intended to record the couple.
Burroughs explained that while the camera was not able to record anything, the
images captured by the camera could be projected onto a nearby screen.
On cross-examination, Burroughs testified that he worked in the Assemblies
of God’s District Office after he left the Church, and he is now the lead pastor at
Northwood Assembly of God. Several of his current parishioners were formerly
members of the Church. Burroughs testified that he was friends with Kevin,
Zoanni’s father, and when Burroughs worked in the district office, he had hired
Kevin to work at several youth conventions and conferences.
C. Analysis
Assuming the trial court abused its discretion by erroneously excluding
Burroughs’ statements based on the clergy privilege, we can only reverse on this
47
basis if, after reviewing the entire record, we determine the trial court’s error
probably caused the rendition of an improper judgment. See Gunn v. McCoy, 554
S.W.3d 645, 668–69 (Tex. 2018); TEX. R. APP. P. 44.1(a)(1) (stating error is harmful
if it “probably caused the rendition of an improper judgment”).15 In other words, the
error “can be said to have contributed in a substantial way to bring about the adverse
judgment.” Id. (quotation omitted). Whether an error probably caused the rendition
of an improper judgment “necessarily is a judgment call entrusted to the sound
discretion and good senses of the reviewing court.” McCraw v. Maris, 828 S.W.2d
756, 759 (Tex. 1992). The exclusion of evidence is likely harmless if it is cumulative
of other testimony. Gunn, 554 S.W.3d at 668.
After reviewing the entire record, we conclude Burroughs’ proffered
testimony is largely cumulative of testimony provided by other witnesses, including
Zoanni, her father Kevin, and Trapp. One of the critical portions of Burroughs’
testimony is his assertion that Hogan confessed that he “climbed up into the attic [of
his home]” with the “intention of looking at [the 14-year-old girls] as they used the
bathroom.” At trial, Hogan denied that he climbed up the attic with the intention of
spying on anyone and he claimed he saw Sarah in the bathroom by accident.
15
An error is also harmful if it “probably prevented the appellant from properly
presenting the case to the court of appeals.” TEX. R. APP. P. 44.1(a)(2). Zoanni,
who made an offer of proof of Burroughs’ testimony, does not argue that the
exclusion of Burroughs’ testimony from trial probably prevented her from properly
presenting the case on appeal.
48
Like Burroughs, Trapp and Kevin testified that they understood from Hogan
that he went into the attic with the intent to spy on a 14-year-old girl. Trapp, a
Minister in the Assemblies of God, testified that Hogan confessed that “he figured
out you could look into the bathroom into the AC vent and they had some girls from
the youth group over, so [Hogan] climbed in the attic and looked down through the
vent.” When asked if he understood that Hogan had “intentionally planned his
peeping activity,” Kevin testified, “There was no doubt in my mind that it was
planned when he told me that he thought it was going to be the other person, the
other girl.” Zoanni, Kevin, and Trapp also provided similar testimony regarding the
other events Hogan described to Burroughs, such as trying to place a camera in the
Tulloses’ bedroom, watching a woman in a costume store dressing room, and Zoanni
catching him watching the Girls Gone Wild infomercial.
Zoanni argues that Burroughs’ testimony is not cumulative because
Burroughs “was the central, unimpeachable, star witness on the biggest issue in this
case” and Burroughs would have provided Zoanni’s “best evidence” that she was
telling the truth. While “testimony from a disinterested witness may lend substantial
weight to similar testimony from an interested witness, particularly on a hotly-
contested issue,” the record reflects that Burroughs was not a disinterested witness,
and Hogan’s counsel would have been able to elicit testimony potentially
49
undermining Burroughs’ credibility. Hooper v. Chittaluru, 222 S.W.3d 103, 110
(Tex. App.—Houston [14th Dist.] 2006, pet. denied).
During his deposition, Burroughs admitted that he had been friends with
Zoanni’s father, Kevin, for a long time and Burroughs had hired Kevin to work at
several youth conferences. Burroughs’ statement to the Church also suggests
Burroughs harbors ill will towards Hogan and his parents, Robert and Brenda. While
the first half of Burroughs’ statement to the Church discusses Hogan’s confession,
the second half of the statement appears primarily concerned with what Burroughs
characterizes as Robert’s and Brenda’s efforts to minimize the scope of Hogan’s
sexual transgressions and cover up the details of his confessions. Burroughs
concluded by stating:
This is just a summary of knowing and working with the Hogan family
since 1990. I take no joy in saying it or even thinking about it but they
are corrupt people who do not act as a minister should. I know story
after story after story of things that they did, of lies, half-truth,
manipulation, and cover-ups. It is my opinion that Robert, Brenda, and
[Hogan] should NOT be allowed to continue as credentialed ministers
of the Assemblies of God.
Burroughs’ statement reflects that contrary to Zoanni’s assertion, Burroughs is not
an “unimpeachable” disinterested witness. Rather, the record reflects that like
Zoanni, Burroughs made his statement to the Church in part because he wanted
Hogan to lose his credentialing with the Assemblies of God. Burroughs also took
this opportunity to air his grievances with Robert and Brenda and to argue that, like
50
their son, they too were unfit to lead the Church and they should also lose their
credentialing with the Assemblies of God.
Because Burroughs’ proffered testimony is largely cumulative of other
admitted testimony, all of which involve confessions Hogan purportedly made to
them in May 2005, and his statement reflects he is not an unimpeachable or
disinterested witness, as Zoanni argues, we cannot say the trial court’s exclusion of
Burroughs’ testimony and his statement to the Church probably caused the rendition
of an improper judgment. See Gunn, 554 S.W.3d at 668–69; see also TEX. R. APP.
P. 44.1(a)(1) (stating trial court error is reversible if it “probably caused the rendition
of an improper judgment”).
We overrule Zoanni’s fourth issue.
Defamatory Statements: Opinions or Statements of Fact?
In her second issue on remand, Zoanni argues that “part of the judgment
improperly penalizes Zoanni for her opinions.” See Anderson v. Durant, 550 S.W.3d
605, 617–18 (Tex. 2018) (stating actionable defamation requires among other things,
publication of false statement of fact to third party). According to Zoanni, the
51
following eleven statements are not actionable as defamation because they are purely
subjective assertions or opinions:16, 17
1. “DATE: 7/18/2013...REPORTEE 1: MONTAGNE,
STEPHANIE LYNN... SUSPECT 1: HOGAN, LEMUEL
DAVID... Ms. Montagne feels strongly there is child
pornography on David’s computers.”
2. “DATE: 7/18/2013...REPORTEE 1: MONTAGNE,
STEPHANIE LYNN... SUSPECT 1: HOGAN, LEMUEL
DAVID... She also feels that her daughter [Mary] is hiding some
kind of sexual assault and will ‘flip’ when asked about it.”
3. David Hogan...it was quite possible he was involved in child
porn but we had no proof whatsoever that he is...Stephanie
Montagne 281-703-5779
4. “David Hogan still has severe issues ... Please tell me if you think
it[’]s right that a minister who is involved in child porn is put
back into a church as children’s pastor after one year visiting
another pastor once a month and an online course as his rehab??”
5. “David Hogan still has severe issues ... There is an open Sex
Crimes case with Harris County Precinct 4, Case Number 13-
98077.... I filed a report on him last summer.”
6. “[Mary] will no longer be a patient of STEP Pediatrics ... her dad
... And please for the love of God, when you have been informed
that a father is a pedophile ... DO NOT encourage him to sit in
on a meeting where you are discussing breasts and pubic hair!”
7. “(In my Facebook blast I did several weeks ago I said he was
caught and admitted to the camera in the bathroom. Let me be
16
Zoanni concedes that the remaining two statements are statements of verifiable
facts, not opinions. Both statements are defamatory per se and Zoanni does not
challenge this finding on appeal.
17
We numbered these statements for purposes of our analysis of Zoanni’s third issue.
52
100% clear, he was guilty, but did not admit to the camera in the
bathroom but I know it was there ...”
8. “How does a pedophile ... get any custody, much less 6 days at a
time, of his daughter?”
9. “It was YOUR daughter (who just turned 9) who was drug to a
doctor appointment scheduled ... to discuss her breast
development and puberty! They sat YOUR baby girl on the exam
table with complete embarrassment all over her little face, and
the doctor grabbed her breasts and examined her lower regions
with three men in the room including a confessed ... pedophile?”
10. “WHAT’S WRONG? YOU JUST HUMILIATED MY
DAUGHTER AND ME IN FRONT OF HER ... PEDOPHILE
FATHER AND HIS RIDICULOUS MOTHER!”
11. “This must have really upset both Chester and Belinda because
from this point on overly sappy sweet Belinda was very cold to
me. Yes your son has a problem with pre-teens and it’s
sickening, so make him children’s pastor at Spring First
Church!”18
A. Applicable Law
Defamation is defined generally “as the invasion of a person’s interest in [his]
reputation and good name.” Hancock v. Variyam, 400 S.W.3d 59, 63 (Tex. 2013).
Actionable defamation requires (1) publication of a false statement of fact to a third
party, (2) that is defamatory concerning the plaintiff, (3) that is made with the
requisite degree of fault regarding the truth of the statement (negligence if the
plaintiff is a private individual), and (4) that proximately causes damages. See
18
In her blog, Zoanni refers to Hogan’s mother, Brenda, as “Belinda.”
53
Anderson, 550 S.W.3d at 617–18 (citing Bos v. Smith, 556 S.W.3d 293, 307 (Tex.
2018)).
Defamatory statements are those that tend to (1) “injure a living person’s
reputation and thereby expose the person to public hatred, contempt or ridicule, or
financial injury” or (2) “impeach any person’s honesty, integrity, virtue, or
reputation.” TEX. CIV. PRAC. & REM. CODE § 73.001. “To qualify as defamation, a
statement should be derogatory, degrading, somewhat shocking, and contain
elements of disgrace.” MVS Int’l Corp. v. Int’l Advert. Sols., LLC, 545 S.W.3d 180,
202 (Tex. App.—El Paso 2017, no pet.). A communication that considering the
circumstances is “merely unflattering, abusive, annoying, irksome, or embarrassing”
or “only hurts a person’s feelings, is not actionable.” Id.To distinguish between an actionable statement of fact and a constitutionally
protected expression of opinion, we focus on the statement’s verifiability and the
entire context in which it was made. See Bentley v. Bunton, 94 S.W.3d 561, 581
(Tex. 2002). To be actionable as defamation, a statement must be an assertion of
verifiable fact, that is, a statement that purports to be verifiable. See id. at 583–84.
A verifiably false statement, however, is not actionable as defamation if the entire
context of the statement discloses that “it is merely an opinion masquerading as
fact.” Dall. Morning News, Inc. v. Tatum, 554 S.W.3d 614, 639 (Tex. 2018).
Whether a publication is an actionable statement of fact, or a protected expression
54
of opinion depends on a reasonable person’s perception of the publication in its
entirety. Bentley, 94 S.W.3d at 579. A statement is an opinion if it is “by its nature,
an indefinite or ambiguous individual judgment that rests solely in the eye of the
beholder or is otherwise a loose and figurative term.” Palestine Herald-Press Co.
v. Zimmer, 257 S.W.3d 504, 511 (Tex. App.—Tyler 2008, pet. denied); see also Falk
& Mayfield L.L.P. v. Molzan, 974 S.W.2d 821, 824 (Tex. App.—Houston [14th
Dist.] 1998, pet. denied) (holding “loose and figurative term employed as metaphor
or hyperbole [ ] is an expression of opinion” and not actionable defamation).
Whether a statement is a statement of fact or opinion is a question of law. Backes v.
Misko, 486 S.W.3d 7, 24 (Tex. App.—Dallas 2015, pet. denied). Merely couching
a statement as an “opinion” does not mean it is constitutionally protected. See
Tatum, 554 S.W.3d at 634 (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 19
(1990)).
B. Analysis
In Zoanni I, this Court held that statements 4, 5, and 7 are statements of fact,
not statements of opinion. Zoanni I, 555 S.W.3d at 331. Having previously resolved
these questions of law against Zoanni, we focus our analysis on statements 1, 2, 3,
6, 8, 9, 10, and 11.19 We conclude those statements are not statements of opinions.
19
See Caplinger v. Allstate Ins. Co., 140 S.W.3d 927, 929 (Tex. App.—Dallas 2004,
pet. denied) (stating “law of the case” doctrine “mandates that the ruling of an
55
Zoanni’s argument that she is merely expressing her opinion when she refers
to Hogan as a “pedophile” in statements 6, 8, 9, and 10 is not persuasive. In
statement 6, Zoanni implicitly refers to Hogan as a pedophile when she states in her
letter to Dr. Edralin, “you have been informed that a father is a pedophile.” She
makes similar comments in statements 8, 9, and 10, which are found in Zoanni’s
blog. As concerns statements 6 and 9, whether Dr. Edralin was informed that Hogan
was a pedophile and whether Hogan confessed to being a pedophile are verifiable
facts. As to statements 8, 9, and 10, a reasonable person reading these statements in
Zoanni’s blog would understand that Zoanni is making factual assertions—accusing
Hogan of being a pedophile. See Bentley, 94 S.W.3d at 579 (whether statement is
actionable statement of fact or protected expression of opinion depends upon
reasonable person’s perception of entirety of publication). Whether Hogan is in fact
a pedophile is a verifiable fact. See Schmitz v. Cox, No. 01-15-00199-CV, 2015 WL
6755427, at *4–5 (Tex. App.—Houston [1st Dist.] Nov. 5, 2015, no pet.) (mem. op.)
(“Even assuming that calling someone a ‘nut job’ does not include an assertion of
verifiable fact, claiming that someone is mentally unstable, committed a crime by
defacing a campaign sign, and has defaulted on his child support obligations does
appellate court on a question of law raised on appeal will be regarded as the law of
the case in all subsequent proceedings unless clearly erroneous”) (citing Briscoe v.
Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003)); Backes v. Misko, 486 S.W.3d
7, 24 (Tex. App.—Dallas 2015, pet. denied) (stating whether statement is statement
of fact or opinion is question of law).
56
assert verifiable facts.”); see also Montano v. Cronan, No. 09-20-00232-CV, 2021
WL 2963801, at *6 (Tex. App.—Beaumont July 15, 2021, no pet.) (mem. op.)
(holding statement, “That guy is a pedophile! He is a pervert! Watch your kids—
h[e] is a pervert! [ ] Taking pictures of girls, you pedophile!,” is defamatory per se).20
Statements 1, 2, and 3, reflected in the police report, stating Zoanni “feels
strongly there is child pornography on [Hogan’s] computers,” “feels that her
daughter [Mary] is hiding some kind of sexual assault and will ‘flip’ when asked
about it,” and “it was quite possible [Hogan] was involved in child porn but we had
no proof” are also verifiable facts. Whether there is child pornography on Hogan’s
computers is a verifiable fact as demonstrated by Trapp’s testimony that he found
pornography on his church computer and Hogan confessed to Trapp that the
pornography belonged to him. Whether Hogan is “involved in child porn” or Mary
“is hiding some kind of sexual assault” are also verifiable facts and allegations law
20
We note that pedophilia is a form of sexual deviance, and an individual may be
diagnosed as suffering from this condition. See In re Commitment of S.D., No. 10-
17-00129-CV, 2020 WL 103721, at *2 (Tex. App.—Waco Jan. 8, 2020, no pet.)
(“Dr. Arambula testified that the clinical diagnosis that correlates to Dixon’s sexual
deviance is pedophilia—a typically chronic condition in which someone is sexually
attracted to children and acts on his or her urges and sexual preferences.”); In re
Commitment of Smith, No. 07-17-00147-CV, 2018 WL 5832178, at *5 (Tex. App.—
Amarillo Nov. 7, 2018, no pet.) (“Arambula diagnosed Smith as suffering from
pedophilia, a form of sexual deviance.”); see also Montano v. Cronan, No. 09-20-
00232-CV, 2021 WL 2963801, at *6 (Tex. App.—Beaumont July 15, 2021, no pet.)
(mem. op.) (citing dictionary defining “pedophilia” as “psychiatric disorder”). This
indicates that whether a person is a pedophile is a verifiable fact.
57
enforcement considered before closing the case. See Bentley, 94 S.W.3d at 579
(whether statement is actionable statement of fact or protected expression of opinion
depends upon reasonable person’s perception of entirety of publication); see also
Durant v. Anderson, No. 02-14-00283-CV, 2020 WL 1295058, at *21 (Tex. App.—
Fort Worth Mar. 19, 2020, pet. denied) (mem. op.) (stating “the fact an investigation
was initiated shows that the statements were verifiable” in defamation case ); but see
California Commercial Inv. Group, Inc. v. Herrington, No. 05-19-00805-CV, 2020
WL 3820907, at *6 (Tex. App.—Dallas July 8, 2020, no pet.) (holding defendant’s
statement to police that she “knows very well” that plaintiff staged burglary to steal
property was subjective opinion, not verifiable fact, and noting evidence supported
opinion).
Although posed as a question, Zoanni’s statement to Barker in statement 4 is
also actionable as defamation. Statement 4 states: “David Hogan still has severe
issues ... Please tell me if you think it[’]s right that a minister who is involved in
child porn is put back into a church as children[’]s pastor after one year visiting
another pastor once a month and an online course as his rehab??” Based on the
entirety of the publication, a reasonable person would understand that Zoanni is
accusing Hogan of being “involved in child porn,” an assertion of a verifiable fact.
See Bentley, 94 S.W.3d at 579 (stating whether statement is actionable statement of
fact or protected expression of opinion depends upon reasonable person’s perception
58
of entirety of publication); see also Backes, 486 S.W.3d at 26–27 (holding
statements on internet posting including “[h]as anyone ever known anyone with [the]
disease/issue” of Munchausen–Syndrome–by–Proxy and “[i]f you have STRONG
suspicions . . . to whom do you turn them over” were not protected expressions of
opinion but were assertions of objectively verifiable facts that were defamatory,
namely accusing plaintiff of medical child abuse).
Taken in isolation, Zoanni’s assertion in statement 11 that Hogan “has a
problem with pre-teens” and “it’s sickening” may be construed as an assertion of an
opinion. See Palestine Herald-Press Co., 257 S.W.3d at 511 (stating opinion is “by
its nature, an indefinite or ambiguous individual judgment that rests solely in the eye
of the beholder or is otherwise a loose and figurative term”). But when considered
in the context of Zoanni’s blog, a reasonable person would understand this to mean
that Zoanni is accusing Hogan of engaging in inappropriate conduct with minors, an
assertion of a verifiable fact. See Bentley, 94 S.W.3d at 579 (stating whether
statement is actionable statement of fact or protected expression of opinion depends
upon reasonable person’s perception of entirety of publication).
We conclude that the challenged statements are assertions of verifiable facts,
not opinions, and thus actionable as defamation.
We overrule Zoanni’s second issue.
59
Mitigation Instruction
In her first issue on remand, Zoanni argues, among other things, that the trial
court abused its discretion in failing to include a mitigation instruction in the
damages portion of the jury charge because the issue was raised by the written
pleadings and the evidence. She argues there is some evidence Hogan failed to
exercise reasonable care to minimize the damage to his reputation and mental
anguish allegedly resulting from her defamatory statements.21
A. Standard of Review and Applicable Law
We review alleged charge error for abuse of discretion. Shupe v. Lingafelter,
192 S.W.3d 577, 579 (Tex. 2006). A trial court abuses its discretion when it acts
without reference to any guiding rules and principles or, in other words, when the
act is arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241–42 (Tex. 1985).
After a jury trial, the trial court must submit a written charge including all
“questions, instructions and definitions . . . which are raised by the written pleadings
and the evidence.” TEX. R. CIV. P. 278. “A trial court may refuse to submit an issue
only if no evidence exists to warrant its submission.” Elbaor v. Smith, 845 S.W.2d
240, 243 (Tex. 1992). “The mitigation of damages doctrine requires an injured party
21
We address the other arguments raised in Zoanni’s first issue on remand later in this
opinion.
60
to exercise reasonable care to minimize its damages, if the damages can be avoided
with only slight expense and reasonable effort.” Harris Cnty. Smoker, 934 S.W.2d
714, 721 (Tex. App.—Houston [1st Dist.] 1996, writ denied). An instruction on
mitigation of damages is appropriate when there is evidence of negligence on the
part of the plaintiff. See id. But there must be “some evidence in the record from
which the jury can make a reasoned calculation about losses from [a plaintiff’s]
failure to mitigate.” Hygeia Dairy Co. v. Gonzalez, 994 S.W.2d 220, 226 (Tex.
App.—San Antonio 1999, no pet.). “[A] plaintiff’s own evidence can be used to
provide the requisite framework.” Id. at 225.
The party “who caused the loss bears the burden of proving lack of diligence
on the part of the plaintiff, and the amount by which the damages were increased”
by the alleged failure to mitigate. Smoker, 934 S.W.2d at 721. A trial court is not
required to submit a mitigation instruction if the defendant does not present any
evidence of an amount by which the plaintiff’s damages were increased by his
alleged failure to mitigate. See id. at 722 (holding trial court did not abuse its
discretion by not including mitigation instruction in charge when defendant “did not
present any evidence of an amount by which Smoker’s damages were increased by
her alleged failure to mitigate”).
61
B. Analysis
During the charge conference, Zoanni objected to the trial court’s failure to
include a mitigation instruction in the jury charge. She tendered the following
proposed mitigation instruction by dictation into the record:
Do not include any amount for any condition resulting from the failure,
if any, of Lemuel David Hogan to have acted as a person of ordinary
prudence would have done under the same or similar circumstances in
caring for and treating his injuries, if any, that resulted from any
occurrences in question.
Zoanni argued that mitigation was a “defense at common law. I believe I have that
defense under Chapter 33 Civil Practice and Remedies Code, and I think I get that
defense under [the] Defamation Mitigation Act.” The trial court denied Zoanni’s
request to include the instruction in the charge.
Zoanni argues the trial court abused its discretion by failing to include the
proposed mitigation instruction because “Hogan did plenty by himself to damage his
reputation and cause himself mental anguish,” including by (1) “consistently
viewing pornography, particularly voyeuristic porn,” (2) “viewing pornography on
church computers,” (3) “peeking into women’s dressing rooms,” (4) “secretly
planting cameras to record sexual activity of his friend and fellow minister,”
(5) “secretly removing an attic fan to peer into a bathroom to see naked girls,”
(6) “voluntarily placing himself on one-year probation as a minister,” (7) “calling
sex hotlines,” (8) showing the police report to his then-fiancée, and (9) “fil[ing] suit
62
to modify custody [of Mary] and amplif[ying] the importance of the blog he hated.”
Zoanni argues the “jury was not instructed to decrease damages accordingly, which
led to an improper verdict and judgment.”
Zoanni has not directed us to any evidence in the record reflecting the
amount Hogan’s damages were increased by his alleged failure to mitigate. Without
such evidence, we hold the trial court did not abuse its discretion by failing to include
the requested mitigation instruction in the jury charge. See Smoker, 934 S.W.2d at
722 (holding trial court did not abuse its discretion by not including mitigation
instruction in charge when defendant “did not present any evidence of an amount by
which Smoker’s damages were increased by her alleged failure to mitigate”).
We overrule the portion of Zoanni’s first issue pertaining to the trial court’s
failure to include a mitigation instruction in the charge.
Publication
In her third issue on remand, Zoanni argues there is legally insufficient
evidence “that Zoanni published any of the complained-of police report statements”
listed under Jury Question 5. Jury Question 5 lists two statements from Deputy
Nelson’s police report and asks the jury to determine whether Zoanni published the
“statements with law enforcement personnel to other people.” The jury was
instructed that “publish” means “intentionally or negligently to communicate the
63
matter to a person other than [Hogan] who is capable of understanding its meaning.”
The jury answered “Yes” as to publication.
Zoanni argues Hogan cannot recover damages based on either statement
because there is no evidence she published the police report or her statements in the
police report to other people. See Anderson, 550 S.W.3d at 617–18 (stating
actionable defamation requires among other things, publication of false statement of
fact to third party). Assuming without deciding there is legally insufficient evidence
to support the jury’s findings of publication under Jury Question 5, we cannot
reverse unless Zoanni demonstrates harm. TEX. R. APP. P. 44.1(a); see Ford Motor
Co. v. Castillo, 279 S.W.3d 656, 667 (Tex. 2009) (stating that even if trial court
abuses its discretion, “the complaining party must still show harm on appeal to
obtain a reversal”). An error is harmful if it “probably caused the rendition of an
improper judgment” or “probably prevented the appellant from properly presenting
the case to the court of appeals.” TEX. R. APP. P. 44.1(a).
Zoanni argues that because there is no evidence either statement was
published, “neither liability nor damages for the defamation claim based on this
theory can be sustained.” She further contends that “the judgment must be reversed
and rendered as to this claim and remanded with respect to the issue of calculating
damages” because the “publication issue infect[ed] the jury’s answer” under Jury
Question 10 Part A, where “the jury awarded [Hogan] $900,000 in damages.”
64
The thirteen defamatory statements were separated and presented to the jury
in two separate parts in the damages portion of the jury charge. Jury Question 10
Part A listed eight statements, and Jury Question 10 Part B listed the remaining five
statements.22 The jury awarded Hogan $900,000 in compensatory damages for the
statements in Jury Question 10 Part A consisting of (1) $600,000 for past and future
damage to his reputation, and (2) $300,000 for past and future mental anguish. And
it awarded Hogan $1,200,000 in compensatory damages for the statements in Jury
Question 10 Part B consisting of (1) $850,000 for past and future damage to his
reputation, and (2) $350,000 for past and future mental anguish.
The two alleged unpublished statements under Jury Question 5 were listed
under Part A of Jury Question 10, along with six other listed statements. Part A of
Jury Question 10 included a single line for each category of damages (past mental
anguish, future mental anguish, past injury to reputation, and future injury to
reputation) for all eight listed statements. No one objected to the submission of this
question and neither party argues on appeal that the submission of the broad-form
question on damages was improper. Because of the way the issue was presented to
the jury, we have no ability to review the legal sufficiency of the evidence to support
22
The parties did not explain in their briefs, nor could they explain during oral
argument, why the statements were separated and presented to the jury in two
separate damage questions. Nor did Zoanni argue that the statements, either
collectively or as listed, presented a single theory of liability.
65
any particular award of damages as it concerns the two challenged statements, nor
can we say Zoanni was harmed by the submission of these two statements to the
jury.
The Texas Supreme Court’s opinion in Bombardier Aerospace Corp. v. SPEP
Aircraft Holdings, LLC, 572 S.W.3d 213 (Tex. 2019) is instructive. In Bombardier,
the buyers of an aircraft sued the seller, Bombardier, for breach of contract, breach
of express warranty, and fraud based on Bombardier’s failure to disclose to the
buyers that the aircraft’s left engine had been installed on two other aircrafts and
designated as “repaired” before being installed on the buyers’ aircraft. Id. at 18. The
plaintiffs’ aircraft appraisal expert testified that the plaintiffs had incurred
$2,694,160 in damages, which included the diminution in value of the aircraft due
the repaired engine plus a reduction for loss of value of the engine’s warranties. Id.
at 227. Question four of the jury charge asked the jury to determine “what sum of
money would reasonably compensate the plaintiffs for Bombardier’s fraud, and it
contained a single answer blank.” Id. at 228. “The parties agreed to this damages
question and the single answer blank, and neither party objected.” Id. The jury
found in favor of the plaintiffs on both the breach of contract and fraud claims.
Under the doctrine of election of remedies, the plaintiffs elected to recover on the
fraud claim. Id. at 219. The jury awarded $2,694,160 in actual damages for fraud.
Id.
66
On appeal, Bombardier argued that the award of $2,694,160 in fraud damages
was based solely on the expert’s conclusory opinion that the aircraft had sustained a
diminution in value due to its engine history and a loss in the value of the engine’s
warranty. Id. at 222. The diminution in value, according to the expert, “was
$2,694,160—$1,985,000 excluding the [$709,160] reduction for loss of warranty,
which is about 10% of the purchase price.” Id. at 227. The Supreme Court held that
the expert’s testimony was not conclusory. Id. at 228. Turning next to Bombardier’s
no-evidence challenge as to the “$709,160 in damages for the lost engine
warranties,” the court explained:
Question four of the jury charge asked what sum of money would
reasonably compensate the plaintiffs for Bombardier’s fraud, and it
contained a single answer blank. [The expert] provided the jury with a
suggested sum of $2,694,160, which included both the diminution in
value plus a reduction for lost value in the warranties. But the jury was
not asked to provide specific dollar amounts to award damages for
diminution in value and for lost value in warranties. The parties agreed
to this damages question and the single answer blank, and neither party
objected. As a consequence, we cannot determine the exact portion of
the damages award that compensated the plaintiffs for warranty issues,
and we cannot separate it from diminution-in-value damages, which we
have already determined were supported by [the expert’s] non-
conclusory testimony. . . Therefore, we do not have the ability to review
the legal sufficiency of the evidence to support any particular award of
damages to compensate for fraud as it relates to the engine warranties
without disturbing the jury’s entire answer to question four.
Id. at 228–29. The court thus “decline[d] to disturb the entire actual damages award
under jury charge question four because damages for diminution in value and for
67
loss in warranty value were combined into a single question with one answer blank,
to which the parties agreed.” Id. at 233–34.
We are faced with a similar situation here. Even if we conclude no evidence
supports the publication of the two challenged statements, as Zoanni contends,
Zoanni’s liability under Jury Question 10 Part A was not based exclusively on the
two challenged statements. Rather, the jury awarded damages under Jury Question
10 Part A based on eight listed defamatory statements.23, 24 Because as in
Bombardier, the jury was presented with an agreed broad-form question on damages
for Jury Question 10 Part A based on eight listed defamatory statements, we cannot
discern the exact portion of awards for past and future mental anguish damages or
past and future loss of reputation the jury awarded under Part A to compensate
Hogan for damages resulting from the two challenged statements from the amounts
awarded for the remaining six statements. See 572 S.W.3d at 228 (holding
submission of unobjected to broad-form damages question precluded court’s ability
23
We already overruled Zoanni’s third issue, holding that all eight statements
presented under Jury Question 10 Part A are statements of verifiable fact and thus
actionable as defamation. See Bentley v. Bunton, 94 S.W.3d 561, 583–84 (Tex.
2002) (stating defamatory statements are assertions of verifiable fact); See Anderson
v. Durant, 550 S.W.3d 605, 617–18 (Tex. 2018) (stating actionable defamation
requires publication of false statement of fact to third party).
24
Although Zoanni also argues there is legally and factually insufficient evidence
supporting the award of damages as to all eight statements listed under Jury
Question Part A, for the reasons discussed in the next section, we hold Zoanni’s
challenge to the sufficiency of the evidence supporting the damage awards is waived
due to inadequate briefing.
68
to review legal sufficiency of evidence to support award of damages for one of two
measures of damages and declining to “disturb[] the jury’s entire answer” to
damages question).
Consequently, we cannot, without disturbing the jury’s entire answer on
damages under Part A of Jury Question 10, conduct a meaningful sufficiency review
of the evidence supporting an award of damages for the two statements listed under
Jury Question 5 or discern whether Zoanni was harmed by the inclusion of these
statements in the jury charge, and the jury’s finding of “Yes” under Jury Question 5
for each statement. See Castillo, 279 S.W.3d at 667 (citing TEX. R. APP. P. 44.1(a))
(stating courts of appeal cannot reverse trial court’s judgment unless trial court’s
error was harmful). Because the jury’s findings of liability and its award of damages
under the parties’ agreed broad form question on damages in Jury Question 10 Part
A were based on more than the two statements under Jury Question 5, Zoanni has
not demonstrated she was harmed by the submission of these statements to the jury.
See id. (stating that even if trial court abuses its discretion, “the complaining party
must still show harm on appeal to obtain a reversal”).
We overrule Zoanni’s third issue.
Actual Damages
Separate from her argument regarding the failure to include a mitigation
instruction, which we have already addressed, Zoanni challenges the award of actual
69
damages in her first issue on remand arguing (1) there is “no legally sufficient
evidence to support them,” (2) there is “no factually sufficient evidence to support
them,” (3) they are “manifestly too large,” and (4) “[p]unitive damages were
impermissibly awarded as actual damages.” Hogan argues Zoanni waived her issue
due to inadequate briefing because “there is no statement of facts discussing this
issue, [and] there is no discussion in the argument portion of the brief discussing this
issue.” Hogan also argues “the issue was not preserved in the trial court, and
assuming the undersigned even understands what is even being argued, it was not
preserved in the trial court, and there is evidence to support the findings at issue.”
A. Jury Charge – Actual Damages
Jury Question 10 divided the thirteen alleged defamatory statements into two
parts—Part A listing eight statements, and Part B listing the remaining five
statements. Because the parties did not object to the separation of defamatory
statements into Parts A and B or the separate award of damages for Parts A and B,
we must evaluate the sufficiency of the evidence supporting the damage awards
separately, as submitted in the charge. See Romero v. KPH Consol., Inc., 166
S.W.3d 212, 221 & n.30 (Tex. 2005) (explaining courts measure sufficiency of
evidence by charge as submitted where there were no objections to jury charge).
Thus, in this instance, we must separately evaluate the sufficiency of the evidence
supporting the awards of damages for past and future mental anguish and past and
70
future loss of reputation under Part A, separately from the sufficiency of the evidence
supporting the awards of damages for past and future mental anguish and past and
future loss of reputation under Part B. See id.D. Briefing Waiver
Texas Rule of Appellate Procedure 38.1(i) requires an appellant’s brief to
contain a clear and concise argument with appropriate citations to authorities and the
record. See TEX. R. APP. P. 38.1(i). The failure to provide a substantive and
meaningful analysis applying the law to the facts waives a complaint on appeal. See
Encinas v. Jackson, 553 S.W.3d 723, 728 (Tex. App.—El Paso 2018, no pet.)
(holding appellant waived argument by “provid[ing] no citation to authority, nor
appl[ying] applicable law to the facts of the case in support of her second issue”);
Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San
Antonio 2011, no pet.) (“A failure to provide substantive analysis of an issue waives
the complaint.”); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex.
App.—Houston [14th Dist.] 2005, no pet.) (“[P]arties asserting error on appeal still
must put forth some specific argument and analysis showing that the record and the
law supports their contentions.”).
“An appellate court has no duty—or even right—to perform an independent
review of the record and applicable law to determine whether there was error.”
Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.). “Were
71
we to do so, . . . we would be abandoning our role as neutral adjudicators and become
an advocate for that party.” Id.
1. Appellate Briefing
In the two-page “Statement of Facts” section of her opening brief, Zoanni
introduces the parties in this case. Rather than including a detailed discussion of the
testimony and other evidence admitted during the seven-day jury trial with
supporting citations to the eleven-volume reporter’s record, Zoanni states:
Each person has a significantly different view of numerous events. The
standards of review on this appeal compel the court to review the entire
record on a variety of legal issues. Therefore, rather than present the
court with the standard statement of facts with record citations and force
the court to bounce back and forth like a ping pong ball between the
competing briefs, Mrs. Zoanni is instead condensing her statement of
facts to what will hopefully be much more useful for the court.
Zoanni summarizes her argument for her issue on damages as follows:
The damage verdict totals $2,100,000: theoretically in mental anguish
and loss of reputation, but in reality in punitives. That is a constitutional
violation. There is no evidence that meets the frequently cited tests for
proof of the existence or amounts of those damages. There is therefore
insufficient evidence, and they are also manifestly too large and unjust.
Zoanni then sets forth the standards for legal and factual sufficiency and the law
applicable to mental anguish damages. But rather than addressing the jury’s separate
findings of past and future mental anguish and past and future injury to reputation
separately for Parts A and B of Jury Question 10, Zoanni combines her sufficiency
arguments in one section. Zoanni provides minimal citations to the reporter’s record,
72
citing two hundred pages of testimony from four witnesses who “testified to some
extent on the issue of damages.”
2. Legal Sufficiency Past and Future Mental Anguish
In support of her argument that there is “no evidence” of past and future
mental anguish, Zoanni cites to almost 200 pages in the reporter’s record in her
opening brief, which she contends are relevant to these issues. But she does not
provide any specific record citations regarding the evidence of past mental anguish
and she cites to only two pages of the reporter’s record regarding future mental
anguish. (“For future mental anguish the jury awarded $150,000 based on “you can’t
unring the bell” (8RR 84) and “I’m finished.” (8RR 86).”).
Zoanni’ s analysis challenging the sufficiency of the evidence supporting the
existence and amount of mental anguish damages also fails to differentiate past and
future mental anguish damages awarded for the statements listed under Jury
Question 10 Part A, from the past and future mental anguish damaged awarded for
the statements listed under Jury Question 10 Part B. With respect to the amounts
awarded, Zoanni’s appellate arguments focus primarily on the aggregate $2,100,000
damages awarded for past and future mental anguish and past and future loss of
reputation under Jury Question 10 Part A and Part B. Because the parties did not
object to the portion of the jury charge dividing the thirteen statements into Parts A
and B and submitting them as divided for purposes of damages, however, we must
73
evaluate the sufficiency of the evidence for damages as submitted in the charge. See
Romero, 166 S.W.3d at 221 & n.30 (stating courts measure sufficiency of evidence
by unobjected to jury charge).25 Zoanni has not provided a meaningful and
substantive analysis regarding the sufficiency of the evidence supporting the
amounts of the individual awards for past and future mental anguish under Part A,
separately from Part B, as measured and presented in the jury charge. See id.
Zoanni also fails to cite any authority setting forth the law applicable to future
mental anguish. See TEX. R. APP. P. 38.1(i) (requiring appellant’s brief to contain
“appropriate citations to authorities”). While she includes citations to authority
regarding past mental anguish, her efforts to apply the law to the facts of this case
are hampered by her conclusory discussion of the evidence presented at trial and her
failure to include a statement of facts in her brief. See TEX. R. APP. P. 38.1(g)
(requiring appellant’s brief to contain statements of facts “supported by record
references”).
Zoanni also argues that the total damages awarded to Hogan for past and
future mental anguish and past and future loss of reputation in Jury Question 10
impermissibly included punitive damages. But the issue of punitive damages was
tried separately, and the jury awarded no damages to Hogan in the form of punitive
25
While Zoanni objected to the trial court’s failure to include a mitigation instruction,
she did not object to Jury Question 10’s separation of the defamatory statements and
corresponding damage awards into Parts A and B.
74
damages. Zoanni points to the arguments of Hogan’s trial counsel, which Zoanni
contends indicate Hogan’s counsel was advocating for the jury to award Hogan more
than just reasonable compensation for his actual injuries. According to Zoanni,
Hogan’s arguments and negative testimony admitted about her at trial caused the
jury to award Hogan what amounts to punitive damages in lieu of actual damages
and this “is a constitutional violation.” But Zoanni fails to cite relevant authorities
on this point or provide any guidance with respect to how such issues should be
evaluated.26
We conclude Zoanni waived her challenge to the legal sufficiency of the
evidence supporting the jury’s awards for past mental anguish by failing to cite to
26
Zoanni quotes her counsel’s argument during the charge conference in which he
cited to Bentley v. Bunton, 94 S.W.3d 561, 605 (Tex. 2002). But Bentley does not
hold that an excessive award of actual damages, such as one that impermissibly
includes punitive damages, constitutes a constitutional violation. Thus, Bentley
does not support the proposition that an award of punitive or exemplary damages
masquerading as actual damages violates the constitution.
In her reply brief, Zoanni cites to State Farm Mutual Automotive Insurance Co. v.
Campbell, 538 U.S. 408 (2003) in apparent support for her argument that the amount
of actual damages awarded to Hogan amounts to a constitutional violation. In State
Farm, the United States Supreme Court held that an award of excessive punitive
damages violates the Due Process Clause of the Fourteenth Amendment. Id. at 429;
see also BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568, 574–75 (1996)
(articulating three guideposts courts use to determine whether award of punitive
damages is so excessive as to violate due process). The jury, however, did not award
Hogan punitive damages and furthermore, to the extent Zoanni is attempting to raise
a due process challenge, “a party may not present arguments for the first time in its
reply brief.” Cebcor Serv. Corp. v. Landscape Design & Constr., Inc., 270 S.W.3d
328, 334 (Tex. App.—Dallas 2008, no pet.); see also Yazdchi v. Bank One, Tex.,
177 S.W.3d 399, 404 n.18 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
75
the reporter’s record or provide a meaningful and substantive analysis regarding the
sufficiency of the evidence supporting the awards for past mental anguish as
presented and measured in the jury charge. See TEX. R. APP. P. 38.1(i); Encinas, 553
S.W.3d at 728 (holding appellant waived argument by “provid[ing] no citation to
authority, nor appl[ying] applicable law to the facts of the case in support of her
second issue”); Marin Real Estate Partners, L.P., 373 S.W.3d at 75 (“A failure to
provide substantive analysis of an issue waives the complaint.”). Zoanni also waived
her challenge to the legal sufficiency of the evidence supporting the jury’s awards
for future mental anguish by failing to cite to any legal authority regarding future
mental anguish, sufficiently cite to the record, or provide any meaningful analysis
of these issues. See TEX. R. APP. P. 38.1(i); Encinas, 553 S.W.3d at 728; Marin Real
Estate Partners, L.P., 373 S.W.3d at 75; see also Patel v. Hussain, 485 S.W.3d 153,
182 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (holding appellant who
“globally challenge[d] mental anguish damages and [did] not separately challenge
the jury’s award of future mental anguish damages or cite to authority relevant to
future mental anguish damages” waived challenge to award of future mental anguish
damages on appeal).
3. Factual Sufficiency Past and Future Mental Anguish
Zoanni’s challenge to the factual sufficiency of the evidence supporting the
jury’s awards of damages for past and future mental anguish, including the amounts
76
awarded, are also waived because Zoanni presents little more than conclusory
assertions that the damage awards are “manifestly too large and unjust,” and she
does not apply the factual sufficiency standard to the facts in this case or otherwise
provide a meaningful analysis of these issues. See TEX. R. APP. P. 38.1(i); Marin
Real Estate Partners, L.P., 373 S.W.3d at 75 (“A failure to provide substantive
analysis of an issue waives the complaint.”); see also Mar. Overseas Corp. v. Ellis,
971 S.W.2d 402, 406 (Tex. 1998) (stating claim that award of actual damages is
excessive is factual-sufficiency complaint).27
27
Zoanni’s reply is equally deficient because her sufficiency arguments do not
differentiate between (1) the awards for mental anguish and injury to reputation,
(2) awards for past and future loss of reputation, or (3) the awards for past and future
mental anguish, and her discussion focuses on the entire amount of actual damages
awarded for past and future mental anguish and past and future loss of reputation
under Jury Question 10 Parts A and B. See Romero v. KPH Consol., Inc., 166
S.W.3d 212, 221 & n.30 (Tex. 2005) (stating courts measure sufficiency of evidence
as presented in jury charge when parties did not object). Zoanni’s reply brief thus
fails to provide a meaningful and substantive analysis of these issues as presented
in the jury charge. See TEX. R. APP. P. 38.1(i); Marin Real Estate Partners, L.P. v.
Vogt, 373 S.W.3d 57, 75 (Tex. App.—San Antonio 2011, no pet.) (“A failure to
provide substantive analysis of an issue waives the complaint.”); see also Patel v.
Hussain, 485 S.W.3d 153, 182 (Tex. App.—Houston [14th Dist.] 2016, no pet.)
(holding appellant who “globally challenge[d] mental anguish damages and [did]
not separately challenge the jury’s award of future mental anguish damages or cite
to authority relevant to future mental anguish damages” waived challenge to award
of future mental anguish damages on appeal). Moreover, an appellant who develops
her arguments for the first time in her reply waives the issue. See Bank of Am., N.A.
v. Barth, No. 13-08-00612-CV, 2013 WL 5676024, at *3 (Tex. App.—Corpus
Christi–Edinburg Oct. 17, 2013, no pet.) (mem. op.) (holding appellant waived issue
because it “developed this argument, citing to the record and authority for the first
time in its reply brief”); see also Palma v. Harris Cnty. Appraisal Review Bd., No.
01-17-00705-CV, 2018 WL 3355052, at *2 (Tex. App.—Houston [1st Dist.] July
10, 2018, pet. denied) (mem. op.) (holding appellant who “did not develop or
77
We conclude Zoanni waived her challenges to the legal and factual sufficiency
of the evidence supporting the jury’s awards for past and future mental anguish,
including the amounts of damages awarded, based on briefing waiver.
4. Legal and Factual Sufficiency Past and Future Loss of Reputation
Apart from identifying the legal and factual sufficiency standards applicable
in all civil cases, Zoanni does not cite to any legal authority in her opening brief in
support of her argument that there is legally and factually insufficient evidence
supporting the awards for past and future injury to Hogan’s reputation. While she
generally refers to almost 200 pages of testimony, Zoanni does not cite to a specific
page in the eleven-volume Reporter’s Record supporting her descriptions of the
evidence. See Valadez, 238 S.W.3d at 845 (“An appellate court has no duty—or
even right—to perform an independent review of the record and applicable law to
determine whether there was error.”); see also In re B.T.D., 2017 WL 343613, at *7
(“[W]e have ‘no duty to search a voluminous record without guidance from appellant
to determine whether an assertion of reversible error is valid.’”) (quoting Casteel–
Diebolt v. Diebolt, 912 S.W.2d 302, 305 (Tex. App.–Houston [14th Dist.] 1995, no
writ)). This briefing deficiency is exacerbated by the fact that Zoanni did not include
properly brief his argument that he was entitled to a situs hearing until his reply
brief” waived issue due to inadequate briefing).
78
a statement of facts in her brief discussing—or even summarizing—the witness
testimony admitted over the course of the seven-day trial. See TEX. R. APP. P.
38.1(g) (requiring appellant’s brief to contain statement of facts “supported by
record references”).
Zoanni also argues there is no evidence to support the amounts of past and
future damages for injury to Hogan’s reputation, and that the awarded amounts
impermissibly include punitive damages. But she does not cite to any legal authority
in support of her arguments. Zoanni’s appellate arguments also focus on the
aggregate amounts of damages awarded for past and future injury to reputation under
both Parts A and B of Jury Question 10 or the entire amount of actual damages
awarded for past and future mental anguish and past and future loss of reputation in
Jury Question 10 Parts A and B. She does not address the two separate awards for
past and future loss of reputation under Part A or the two separate awards for past
and future loss of reputation under Part B. See Romero, 166 S.W.3d at 221 & n.30
(stating courts measure sufficiency of evidence by unobjected to jury charge). Thus,
Zoanni has not provided a substantive and meaningful analysis with respect to her
challenge to the legal sufficiency of the evidence supporting the damages awarded
for past and future loss of reputation as submitted and presented to the jury in the
charge. See id.
79
Because she did not cite to any authority setting forth the law applicable to
awards for past or future loss of reputation, apply that law to the facts of this case,
cite to specific pages of the reporter’s record supporting her factual assertions, or
provide a meaningful and substantive analysis of these issues, Zoanni’s challenge to
the legal sufficiency of the evidence supporting the awards for past and future loss
of reputation under Parts A and B of Jury Question 10 are waived. See TEX. R. APP.
P. 38.1(i); Encinas, 553 S.W.3d at 728 (holding appellant waived argument by
“provid[ing] no citation to authority, nor appl[ying] applicable law to the facts of the
case in support of her second issue”); Marin Real Estate Partners, L.P., 373 S.W.3d
at 75 (“A failure to provide substantive analysis of an issue waives the complaint.”);
see also Patel, 485 S.W.3d at 182 (holding appellant who “globally challenge[d]
mental anguish damages and [did] not separately challenge the jury’s award of future
mental anguish damages or cite to authority relevant to future mental anguish
damages” waived challenge to award of future mental anguish damages on appeal).
With respect to the factual sufficiency of the evidence supporting the awards
for loss of reputation, Zoanni presents little more than conclusory assertions that the
damage awards in this case are “manifestly too large and unjust.” See Mar. Overseas
Corp., 971 S.W.2d at 406 (stating claim that award of actual damages is excessive
is factual-sufficiency complaint and courts will set aside jury finding based on
factually insufficient evidence if evidence is “so contrary to the overwhelming
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weight of the evidence that the verdict is clearly wrong and unjust”). While she
identifies the factual sufficiency standard, Zoanni does not apply the standard to the
facts in this case or otherwise provide a meaningful analysis of the issue based on
the way the damages question was presented to the jury.
We thus conclude Zoanni waived her challenges to the legal and factual
sufficiency of the evidence supporting the jury’s findings of past and future loss of
reputation, including the amounts of damages awarded. See TEX. R. APP. P.
38.1(i).28
We overrule Zoanni’s challenges in her first issue to the sufficiency of the
evidence supporting the jury’s awards of past and future mental anguish damages
and past and future loss of reputation based on waiver. Any pending motions are
denied as moot.
Conclusion
We affirm the trial court’s judgment.
Veronica Rivas-Molloy
Justice
Panel consists of Chief Justice Adams and Justices Countiss and Rivas-Molloy.
28
Zoanni’s reply brief suffers from some of the same noted deficiencies.
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