Stephanie Montagne Zoanni v. Lemuel David Hogan, 555 S.W.3d 321

Background

Zoanni (appellant) and Hogan (appellee/ex-husband) disputed multiple public statements by Zoanni alleging Hogan had peeked/filmed girls and had sexual-offense-related conduct stemming from a 2005 incident.
Hogan sent a March 7, 2014 letter identifying three allegedly defamatory statements; Zoanni independently corrected a fourth. No other written retraction/clarification requests were sent for nine additional statements later asserted.
Hogan amended his petition on the eve of trial to allege 13 defamatory statements total (the three in the March 2014 letter, the one corrected by Zoanni, and nine others); the one-year limitations/Defamation Mitigation Act (DMA) window had expired for the nine additional statements.
The trial court submitted all 13 statements to the jury; the jury found all defamatory and awarded $2.1 million in damages (grouped into two blocks).
On appeal Zoanni argued (inter alia) Hogan failed to comply with the DMA as to nine statements; the First Court of Appeals held Hogan could not recover on those nine statements because he failed to make timely, particularized DMA requests and the statutory deadline had expired.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether DMA permits defamation claims to go to jury when plaintiff failed to make timely, sufficient requests for correction/clarification/retraction for particular statements	Hogan argued his claims should proceed (or that abatement, not dismissal, is the proper remedy); contended prior letter/Rule 11 gave notice	Zoanni argued Hogan failed to comply with DMA for nine statements and the deadline had expired, so those claims must be barred	Court: DMA requires a timely, particularized request for each alleged defamatory statement; nine claims barred because Hogan never made such requests and could no longer do so when tried
Whether abatement is the exclusive/must remedy for DMA noncompliance	Hogan (and some cases) argued noncompliance should result in abatement rather than dismissal	Zoanni argued abatement is inapplicable after the one-year deadline has passed and noncompliant claims must be barred	Court: Abatement is available only while the plaintiff can still comply; where the statutory window has closed, claims that did not comply cannot proceed to jury
Whether loss of exemplary (punitive) damages is the sole consequence of DMA noncompliance	Hogan argued the remedy is limited to loss of exemplary damages	Zoanni argued full preclusion applies for statements not timely/sufficiently identified	Court: Statute’s structure shows loss of exemplary damages applies when request is late beyond 90 days but within one year; full failure to comply for the year precludes maintaining the claim
Whether four remaining challenged statements are actionable facts or protected opinion	Zoanni contended those four statements were opinion and thus nonactionable	Hogan argued they asserted verifiable facts (e.g., filming, child porn involvement, open sex-crimes report)	Court: The four statements are verifiable factual assertions, not mere opinion; they may proceed on remand

Key Cases Cited

TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68 (Tex. 2016) (statutory interpretation reviewed de novo)
Ineos USA, LLC v. Elmgren, 505 S.W.3d 555 (Tex. 2016) (use plain statutory text and harmonize provisions)
In re Office of Attorney Gen., 422 S.W.3d 623 (Tex. 2013) (interpret statutes to effectuate all provisions)
Meritor Automotive, Inc. v. Ruan Leasing Co., 44 S.W.3d 86 (Tex. 2001) (statutory interpretation principles)
Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572 (Tex. 2017) (elements of defamation claim)
Velocity Databank, Inc. v. Shell Offshore, Inc., 456 S.W.3d 605 (Tex. App.—Houston [1st Dist.] 2014) (accrual and discovery rule in defamation context)
Warner Bros. Entm’t Inc. v. Jones, 538 S.W.3d 781 (Tex. App.—Austin 2017) (view on DMA abatement/remedy)
Hardy v. Commc’n Workers of Am. Local 6215, 536 S.W.3d 38 (Tex. App.—Dallas 2017) (view on DMA abatement/remedy)
Neely v. Wilson, 418 S.W.3d 52 (Tex. 2013) (opinion/nonactionable speech principles)
Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002) (context and verifiability govern fact vs. opinion)
Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (Tex. 2014) (statutory text must be read in context)