Hogan v. Zoanni
| Decision Date | 04 June 2021 |
| Docket Number | No. 18-0944,18-0944 |
| Citation | 627 S.W.3d 163 |
| Court | Texas Supreme Court |
| Parties | Lemuel David HOGAN, Petitioner v. Stephanie Montagne ZOANNI, Respondent |
Dennis Marston Slate, Deer Park, Dannielle-Mahree Simms, James Gutheinz, Brian H. Crockett, Timothy A. Hootman, Houston, Shailey Gupta-Brietzke, for Petitioner.
Jelena Kovacevic, Harry Herzog, for Respondent.
Justice Devine announced the Court's judgment and delivered an opinion, in which Justice Guzman, Justice Lehrmann, and Justice Busby joined.
In this defamation case, we must determine whether the trial court properly denied a defendant's motion for directed verdict as to nine of thirteen allegedly defamatory statements. Under the Defamation Mitigation Act (DMA), a plaintiff "may maintain an action for defamation only if" the plaintiff makes a timely and sufficient statutory request for correction, clarification, or retraction from the defendant or if a defendant makes a correction, clarification, or retraction. See TEX. CIV. PRAC. & REM. CODE § 73.055(a). The defendant asserts the statute's "only if" language is mandatory, creating a precondition to suit for each allegedly defamatory statement. The plaintiff claims the DMA is only a notice statute not meant to foreclose a plaintiff's timely filed cause of action. Rather, if a defendant believes statutory notice is lacking, the defendant must timely object or invoke the statutory abatement process. See id. §§ 73.058(c), .062.
The court of appeals generally agreed with the defendant, concluding that a request is a necessary predicate to submit each alleged instance of defamation to the jury and that the consequence of a plaintiff's failure to make the required request is dismissal of the underlying defamation claim. 555 S.W.3d 321 (Tex. App.—Houston [1st Dist.] 2018). Because the court concluded that only four of thirteen statements submitted to the jury in a nonsegregated jury question met the DMA's requirements, the court of appeals reversed and remanded for a new trial with respect to only those four defamation claims. We conclude, however, that the DMA prescribes the abatement of claims and loss of exemplary damages, rather than dismissal, and empowers the defendant to seek that relief. Because the DMA provides for abatement, not dismissal, and that remedy was available to the defendant when the plaintiff amended his complaint to add the nine disputed statements, the trial court did not err in denying the defendant's motion for directed verdict as to those claims. We accordingly reverse the court of appeals’ judgment and remand the case to that court to consider unaddressed issues.
Plaintiff David Hogan is an executive pastor at a Houston church. In 2011, he divorced his wife, defendant Stephanie Zoanni, who was awarded primary custody of their child. After the divorce, Zoanni published a litany of statements online, to the police, and to Hogan's church leadership stating he is a pedophile, pervert, and patron of child pornography. In a letter to Zoanni dated March 7, 2014, Hogan demanded that Zoanni "cease and desist all defamation of David Hogan's character and reputation." It additionally included statements of Zoanni's "lies, insinuations, and innuendos about [Hogan]’s character and mistreatment of women." The letter specifically referenced a February 5, 2014 email Zoanni sent to the General Secretary of the Assemblies of God and a blog post entitled "What good dad DOES NOT do."
After sending the letter, Hogan sued Zoanni, alleging causes of action for defamation, invasion of privacy, malicious prosecution, abuse of the child protective services process, and intentional infliction of emotional distress. The petition, filed on March 27, 2014, included references to the statements Hogan had made in his earlier letter and sought both actual and exemplary damages.
On April 15, 2016—ten days before trial—Hogan filed his seventh amended petition, which represented the claims that the jury ultimately considered. The amended petition retained only the defamation claims and added nine newly discovered defamatory statements not included in the prior petitions. The amended pleading invoked the relation-back doctrine for each new statement. See TEX. CIV. PRAC. & REM. CODE § 16.068. According to Hogan, because the nine added statements related to the same subject matter as the previously alleged defamatory statements, the statute of limitations did not defeat them. Zoanni never pled a limitations defense to the nine new statements. However, on the first day of trial, Zoanni filed a motion for directed verdict as to the newly added statements and declined the trial court's offer of an abatement. Zoanni argued that as to the new statements, Hogan failed to comply with the DMA's requirements, which obligate a plaintiff to provide a defendant with a timely and sufficient request for correction, clarification, or retraction of each allegedly defamatory statement. Implicit in Zoanni's motion was the notion that a request must be made within the statute of limitations to be "timely." Because the newly proffered statements were made more than a year earlier, Zoanni contended it was no longer possible for Hogan to make a request that complied with the DMA's timeliness requirements as to those statements; hence, the new statements could not be included at trial. The trial court denied the motion for directed verdict and included all thirteen statements in the jury charge. The jury returned a verdict for Hogan totaling $2.1 million in actual damages.
A divided court of appeals reversed and remanded for a new trial on the original four statements alone, holding that Hogan could not recover damages for the nine new statements. 555 S.W.3d at 323–24. The court focused on the DMA's language that "[a] person may maintain an action for defamation only if ... the person has made a timely and sufficient request for correction, clarification, or retraction from the defendant." Id. at 325 (emphasis omitted) ). In construing the language of the DMA's notice provision, the court of appeals concluded that Hogan could no longer make a timely request for the nine added statements, that he thus could not "maintain an action for defamation" based on those statements, and that they should not have been submitted to the jury over objection. Id. at 327. And while the DMA provides for abatement and an opportunity to cure when a plaintiff fails to provide a timely and sufficient request, the appellate court reasoned that abatement was no longer available under the statute's terms or capable of providing a cure for the untimely request. Id. at 327–28. Under these circumstances, the court concluded that dismissal of the nine added claims was the appropriate consequence for Hogan's failure to make a timely and sufficient request. Id. at 328.
A dissenting justice reasoned that abatement and loss of exemplary damages are the only remedies available for noncompliance with the DMA. Id. at 336, 338 (Jennings, J., dissenting) . And regardless of the DMA's abatement procedure, the dissenting justice concluded, Hogan satisfied the statutory requirements when he filed his original petition, which included statements relating to the same subject matter as the newly added statements. Id. at 337. According to the dissent, holding that a court may dismiss a suit for failure to provide adequate notice would undermine the DMA's purposes. Id. at 338 ).
The DMA "provide[s] a method for a person who has been defamed by a publication or broadcast to mitigate any perceived damage or injury." TEX. CIV. PRAC. & REM. CODE § 73.052. Rather than replace the common-law elements of a defamation claim, the statute prescribes a mechanism for plaintiffs to bring attention to defamatory publications to enable defendants, if they so choose, to take corrective action and thereby mitigate injury stemming from that publication. See Warner Bros. Ent., Inc. v. Jones , 611 S.W.3d 1, 10 (Tex. 2020) ) ("[The DMA uses] sticks and carrots to induce plaintiffs and defendants to take prompt action to rectify defamatory publications so any ensuing damages are ameliorated."). Alternatively, a defendant may proactively change potentially defamatory statements to mitigate damages and limit liability arising from those statements. Id. ; TEX. CIV. PRAC. & REM. CODE §§ 73.055(a)(2), .059. Either avenue—a plaintiff's request or a defendant's change—will provide the defendant with the requisite notice for a plaintiff to maintain an action for defamation. TEX. CIV. PRAC. & REM. CODE § 73.055(a) ; see Warner Bros. Ent., Inc. , 611 S.W.3d at 10.
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