Zoanni v. Hogan

• Decision Date: 19 July 2018
• Docket Number: NO. 01-16-00584-CV,01-16-00584-CV
• Parties: Stephanie Montagne ZOANNI, Appellant v. Lemuel David HOGAN, Appellee
• Court: Texas Court of Appeals

555 S.W.3d 321

Stephanie Montagne ZOANNI, Appellant

v.Lemuel David HOGAN, Appellee

NO. 01-16-00584-CV

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

Opinion issued July 19, 2018

Rehearing En Banc Denied September 6, 2018

Harry Herzog, HERZOG & CARP, 427 Mason Park Blv., Katy, TX 77450, Jelena Kovacevic, JJENKINS & KAMIN, Two Greenway Plaza, Sutie 600, Houston, TX 77046, for Appellant.

Timothy A. Hootman, 2402 Pease St, Houston, TX, for Appellee.

Panel consists of Justices Jennings, Massengale, and Caughey.

Jennifer Caughey, Justice

This appeal requires us to determine whether the Defamation Mitigation Act allows defamation claims to proceed to the jury, over objection, when a plaintiff has not complied with the Act's requirements for those claims, and the compliance deadline has expired. The answer is no. We therefore reverse as to nine of the alleged instances of defamation at issue in this appeal. Because we cannot determine what part of the damages awarded pertain solely to the remaining four allegedly defamatory statements (which Appellant Stephanie Zoanni does not challenge under the Defamation Mitigation Act), we reverse for a new trial as to those statements.

Background

In this appeal, Zoanni challenges the jury's findings that she defamed her ex-husband, Lemuel David Hogan, on 13 occasions. Many of the statements at issue surround an alleged incident in 2005. Zoanni contends that, when members of a church's youth group came over to their house, Hogan peered through an attic vent at a young girl in the bathroom. Hogan says that he accidentally glanced through the vent while looking for something in the attic.

On March 7, 2014, Hogan's lawyers sent Zoanni a letter accusing her of defaming him. The letter identified two specific publications, which included three allegedly defamatory statements. Zoanni independently corrected one additional statement. Hogan sent Zoanni no other request for correction, clarification, or retraction. Hogan then sued Zoanni for defamation and to modify custody of their daughter.

Although Hogan's March 2014 letter referenced only 3 allegedly defamatory statements, on the eve of trial, Hogan amended his petition and included 13 allegedly defamatory statements in his proposed jury charge. When Hogan added these allegedly defamatory statements to the jury charge, more than a year had passed since the alleged statements were made. Hogan does not argue that he only recently discovered the statements. Well more than 30 days had passed since Zoanni filed her original answer in this lawsuit.

Under the Defamation Mitigation Act and its statute of limitations,¹ Hogan had a full year to send Zoanni a timely and sufficient request for correction, clarification, or retraction as to each of the nine allegedly defamatory statements not referenced in his March 2014 letter and not independently corrected by Zoanni. But he did no such thing. He instead sought to recover on them, despite never requesting their correction, clarification, or retraction, and despite the lapsing of the year-long limitations period.

Zoanni sought a directed verdict on the basis that Hogan had failed to comply with the Defamation Mitigation Act with respect to the nine statements not identified in Hogan's 2014 letter and not independently corrected by Zoanni. The trial court ruled against her. Zoanni also objected to the jury charge, arguing that Hogan did not comply with the Defamation Mitigation Act with regard to the nine allegedly defamatory statements. She contended that it would be error to submit those instances of alleged defamation to the jury. The trial court overruled those objections.

The jury found all 13 statements to be defamatory. The trial court asked the jury to award damages for the first eight statements as a group, and the last five statements as a group. The jury awarded $900,000 in past and future injury to reputation and mental anguish for the first eight statements, and $1.2 million in past and future injury to reputation and mental anguish for the last five statements, for a total of $2.1 million in damages. The jury also found that these statements were made with malice but awarded no punitive damages. Zoanni filed a motion for new trial that again raised Hogan's failure to comply with the Defamation Mitigation Act.

On appeal, Zoanni argues that (1) because Hogan did not comply with the Defamation Mitigation Act with respect to nine alleged instances of defamation, the judgment should be reversed and rendered in her favor as to those nine allegedly defamatory statements; (2) the trial court erroneously failed to submit a mitigation instruction on damages, the damages award is not supported by sufficient evidence, and the award is too large and impermissibly includes punitive damages; (3) part of the judgment improperly penalizes Zoanni for her opinions; (4) there is not legally sufficient evidence that Zoanni published any of the complained-of police report statements; and (5) the trial court erroneously excluded testimony based upon the clergy privilege. We start with the Defamation Mitigation Act.

Defamation Mitigation Act

Zoanni argues that Hogan did not comply with and, at all relevant times, could no longer have complied with the Defamation Mitigation Act with respect to 9 of the 13 allegedly defamatory statements at issue. She contends that Hogan's failure to comply with the Defamation Mitigation Act bars his recovery as to these statements. We agree.

A. Standard of Review

The interpretation of a statute is a question of law that we review de novo. TIC Energy & Chem., Inc. v. Martin , 498 S.W.3d 68, 74 (Tex. 2016). When interpreting a statute, the text is paramount. We thus interpret statutes in light of their plain language. See Ineos USA, LLC v. Elmgren , 505 S.W.3d 555, 563 (Tex. 2016). We seek to harmonize and effectuate all provisions of the statute. See In re Office of Attorney Gen. , 422 S.W.3d 623, 629 (Tex. 2013) ; Meritor Auto., Inc. v. Ruan Leasing Co. , 44 S.W.3d 86, 90 (Tex. 2001).

B. Applicable Law

To prove defamation, a private individual must demonstrate (1) the publication of a false statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with the requisite degree of fault, and (4) damages, in some cases. Exxon Mobil Corp. v. Rincones , 520 S.W.3d 572, 579 (Tex. 2017) ; see also Dall. Morning News, Inc. v. Tatum , No. 16-0098, 554 S.W.3d 614, 623–24, 2018 WL 2182625, at *3 (Tex. May 11, 2018).

A plaintiff must also comply with the Defamation Mitigation Act (DMA), TEX. CIV. PRAC. & REM. CODE §§ 73.051 –062. The DMA applies to "a claim for relief, however characterized, from damages arising out of harm to personal reputation caused by the false content of a publication." Id. § 73.054(a).

The DMA makes clear that:

(a) A person may maintain an action for defamation only if :

(1) the person has made a timely and sufficient request for a correction, clarification, or retraction from the defendant; or

(2) the defendant has made a correction, clarification, or retraction.

Id. § 73.055(a) (emphasis added).

A request for a correction, clarification, or retraction is timely if it is "made during the period of limitation for commencement of an action for defamation," which is one year after the day the cause of action accrues. Id. §§ 16.002(a), 73.055(b); see also Velocity Databank, Inc. v. Shell Offshore, Inc. , 456 S.W.3d 605, 609 (Tex. App.—Houston [1st Dist.] 2014, pet. denied).

Even if the DMA request is timely, if it is not made within 90 days after the plaintiff receives knowledge of the publication, the plaintiff may not recover exemplary damages. TEX. CIV. PRAC. & REM. CODE § 73.055(c).

The DMA also sets forth specific requirements concerning the sufficiency of a request. A request is sufficient if it:

(1) is served on the publisher;

(2) is made in writing, reasonably identifies the person making the request, and is signed by the individual claiming to have been defamed or by the person's authorized attorney or agent;

(3) states with particularity the statement alleged to be false and defamatory and, to the extent known, the time and place of publication;

(4) alleges the defamatory meaning of the statement; and

(5) specifies the circumstances causing a defamatory meaning of the statement if it arises from something other than the express language of the publication.

Id. § 73.055(d) (emphasis added).

Another provision of the DMA allows for abatement in certain instances:

A person against whom a suit is pending who does not receive a written request for a correction, clarification, or retraction, as required by Section 73.055, may file a plea in abatement not later than the 30th day after the date the person files an original answer in the court in which the suit is pending.

Id. § 73.062(a). If not controverted, the abatement begins 11 days after the plea is filed and continues until the 60th day after the request is served or a later day agreed to by the parties. Id. § 73.062(b), (c).

C. Analysis

This case presents an issue of statutory interpretation that is a matter of first impression in our Court. On the facts of this case—where Hogan did not comply with the DMA and where, by the time he asserted the additional allegedly defamatory statements, the statutory deadlines had expired so compliance was no longer possible—the statute's plain language precluded the non-compliant defamation claims from proceeding to the jury. We need not address how the DMA applies in other circumstances.

The DMA allows a plaintiff to "maintain an action for defamation only if " (1) he sends a timely and sufficient request for correction, clarification, or retraction, or (2) the defendant nevertheless makes a correction, clarification, or retraction of any statement. TEX. CIV. PRAC. & REM. CODE § 73.055(a) (emphasis added); see id. § 73.055(d)(3). To be timely, a request must be sent within one year after the day the cause of action accrues—generally, within a year of the statement's...