Zoanni v. Hogan

• Court: Texas Court of Appeals
• Writing for the Court: Veronica Rivas-Molloy, Justice
• Citation: Zoanni v. Hogan, 715 S.W.3d 47 (Tex. App. 2024)
• Docket Number: 01-16-00584-CV
• Decision Date: 31 December 2024
• Parties: Stephanie Montagne ZOANNI, Appellant v. Lemuel David HOGAN, Appellee

715 S.W.3d 47

Stephanie Montagne ZOANNI, Appellant

v.Lemuel David HOGAN, Appellee

NO. 01-16-00584-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued December 31, 2024

On Appeal from the 246th District Court, Harris County, Texas, Trial Court Case No. 2010-34811-B

Timothy A. Hootman, Brian Crockett, Houston, for Appellee.

Lauren Ondrej, Harry Herzog, for Appellant.

Panel consists of Chief Justice Adams and Justices Countiss and Rivas-Molloy.

OPINION ON REHEARING

Veronica Rivas-Molloy, Justice

Appellant Stephanie Montagne Zoanni moved for rehearing of our December 28, 2023 opinion and judgment. We deny the motion for rehearing, withdraw our opinion and judgment of December 28, 2023, and issue this opinion and judgment in their stead. Our disposition remains the same.¹

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 the thirteen alleged defamatory statements, this Court should reverse and render in her favor as to those nine statements. In Zoanni I,² 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 we 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.³

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.

We affirm the trial court’s judgment.

Background⁴,⁵

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.

The Filed Lawsuit

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 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 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.

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 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 Plaintiffs 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.

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....