Stephanie Montagne Zoanni v. Lemuel David Hogan

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

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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

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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.

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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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