                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00285-CV


MARY CUMMINS                                                        APPELLANT

                                          V.

BAT WORLD SANCTUARY AND                                             APPELLEES
AMANDA LOLLAR


                                      ------------

          FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 352-248169-10

                                       ----------

                        MEMORANDUM OPINION 1

                                       ----------

                                   I. Introduction

      Appellee Amanda Lollar and Appellee Bat World Sanctuary (BWS), a

corporation operating as a nonprofit of which Lollar is president, sued Appellant

Mary Cummins for defamation and breach of contract. After a bench trial at


      1
       See Tex. R. App. P. 47.4.
which Cummins represented herself and for which Lollar and BWS had pro bono

representation, the trial court signed a judgment in favor of Lollar and BWS. The

trial court awarded BWS $10,000 in breach of contract damages and $176,700 in

attorney’s fees, and it awarded Lollar $3 million in actual damages for defamation

and $3 million in exemplary damages.        It further ordered that “Cummins be

permanently enjoined and she is ORDERED to immediately and permanently

remove from the internet” certain statements that she had made. 2

        In ten issues, Cummins, pro se, challenges the judgment on both the

breach of contract and the defamation claims.      Because we hold that Lollar

produced legally sufficient evidence to support the trial court’s finding that

Cummins published with actual malice statements that were defamatory per se,

that Cummins did not challenge the sufficiency of the evidence to support

noneconomic damages, that Cummins did not preserve her challenge to the

exemplary damages award and did not adequately challenge the award on

appeal, we affirm the trial court’s judgment in part. Because we conclude that

BWS did not produce sufficient evidence on the breach of contract claim and that

the award of attorney’s fees therefore cannot stand, we reverse the judgment in

part.




        2
       This court received two friend of the court briefs in this case—one on
behalf of Public Citizen and one filed jointly by The Cambodia Wildlife Sanctuary
and ElephantsinCrisis.org.


                                        2
                                 II. Background

      Lollar became interested in the care of bats in 1989, after she found and

sought treatment for an injured bat. She began rescuing injured bats, and she

and a local veterinarian worked together to learn how to treat bats for various

injuries and ailments. In 1994, Lollar liquidated her furniture business to create

BWS. She bought a building in Mineral Wells, Texas in order to protect a wild

bat colony that lived in the top of the building. The wild colony is still housed in

the building, and BWS also has a captive colony of fruit bats and a captive colony

of insectivorous bats. It also operates a rehabilitation center to treat injured bats

for re-release.

      In 2000, BWS began offering internships for people to come to BWS to

learn about bat rehabilitation. Cummins visited BWS as an intern in 2010 but left

early before completing the internship. To participate in the program, Cummins

signed an internship contract.

      In July 2010, shortly after leaving the internship and returning to her home

in California, Cummins emailed someone at the United States Department of

Agriculture to ask whether BWS had a USDA permit to operate. She alleged that

“conditions [at BWS] were less than optimal” in that the smell of bat guano was

noticeable outside the building housing the wild colony, that the wild colony

included rabid bats, that Lollar did not quarantine sick bats from the wild colony

before taking them in with the indoor colony for treatment, with the result that the

indoor colony had mites, and that Lollar had failed to notice when a bat fell into a


                                         3
trash can. Cummins also posted online videos that she had shot while at BWS,

photographs she had taken there, and statements asserting that Lollar neglected

her pet dogs.

      In September 2010, Lollar and BWS sued Cummins for defamation and for

breach of the intern contract. In March 2011, the trial court held a hearing on a

plea to the jurisdiction filed by Cummins (which the trial court later denied). After

that, in the same month, Cummins escalated her complaints to government

agencies, reporting Lollar for illegal possession and use of controlled substances

and for animal cruelty. Cummins made reports to the Texas Parks and Wildlife

Department, the federal Department of Justice, the Texas Veterinary Board, the

City of Mineral Wells, the Texas State Department of Health, the United States

Fish and Wildlife Service, the Mineral Wells Health Department, and the Texas

Attorney General. She made allegations to the IRS that Lollar was committing

fraud. And Cummins also posted derogatory comments on AnimalAdvocates.us,

a website she ran, on Twitter, and on her Facebook page.            The comments

accused Lollar of donor fraud, tax fraud, animal cruelty, practicing veterinary

medicine without a license, and illegal possession of controlled substances.

      Cummins made a number of other statements on the internet that were

critical of Lollar but did not accuse her of any crime.        For example, Lollar

obtained her GED when she was fifteen years old and spent years learning about

the care of bats under the supervision of a veterinarian. Cummins’s internet

comments, however, portrayed Lollar as someone too uneducated and


                                         4
unintelligent to be considered an expert on wildlife rehabilitation.      Cummins

repeatedly made statements to the effect that Lollar “has not gone past the ninth

grade,” “admits she has no education, didn’t even finish high school, is not a

veterinarian, has never taken any classes in animal care,” and “admits she is

uneducated yet she performs surgery on bats [that] die.” Cummins speculated

about Lollar’s reasons for not finishing high school, stating that “I’m going to

wager that she had poor grades. Good students don’t drop out so they can

become a fork lift operator, welder and a maid. 3       Oops, I mean a cleaning

service.” Cummins mentioned in only one of her numerous postings on the topic

that Lollar had earned her GED.

      Cummins also posted negative statements about Lollar’s attorney

(accusing him of being unethical), a court reporter present at a deposition

(accusing him of perjury and corruption), and the trial judge (accusing him of

ruling for Lollar as a favor to Lollar’s attorney). After her own attorney failed to

corroborate one of her accusations against Lollar’s attorney, she accused him of

falling asleep during the deposition and called the Tarrant County Bar

Association to question his competence, prompting him to withdraw from

representing her.

      Lollar amended her petition to include the statements that Cummins had

posted about her after the suit was filed. Lollar alleged that Cummins’s acts


      3
       These are all jobs that Lollar had held before founding BWS.


                                         5
constituted common law defamation as well as libel under section 73.001 of the

civil practice and remedies code. 4

      After a four-day trial to the bench, the trial court rendered judgment for

Lollar and BWS on the defamation and breach of contract claims, and Cummins

now appeals.

                            III. Standards of Review

                                  Legal Sufficiency

      In each of her issues, Cummins challenges the sufficiency of the evidence

to support the judgment. A trial court’s findings of fact have the same force and

dignity as a jury’s answers to jury questions and are reviewable for legal and

factual sufficiency of the evidence to support them by the same standards. 5 We

may review conclusions of law to determine their correctness based upon the

facts, but we will not reverse because of an erroneous conclusion if the trial court

rendered the proper judgment. 6

      A party will prevail on its legal-sufficiency challenge of the evidence

supporting an adverse finding on an issue for which the opposing party bears the

      4
       See Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (West 2011).
      5
      Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Anderson v. City of
Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); see also MBM Fin. Corp. v.
Woodlands Operating Co., 292 S.W.3d 660, 663 n.3 (Tex. 2009).
      6
       City of Austin v. Whittington, 384 S.W.3d 766, 779 n.10 (Tex. 2012) (citing
BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002));
H.E.B., L.L.C. v. Ardinger, 369 S.W.3d 496, 513 (Tex. App.—Fort Worth 2012, no
pet.).


                                         6
burden of proof if there is a complete absence of evidence of a vital fact or if the

evidence offered to prove a vital fact is no more than a scintilla. 7 More than a

scintilla exists when the evidence as a whole rises to a level enabling reasonable

and fair-minded people to have different conclusions. 8 We regard evidence that

creates a mere surmise or suspicion of a vital fact as, in legal effect, no

evidence. 9

      In conducting a legal-sufficiency review, we consider the evidence in the

light most favorable to the judgment, crediting evidence that a reasonable fact

finder could have considered favorable and disregarding unfavorable evidence

unless the reasonable fact finder could not. 10       We indulge every reasonable

inference that supports the trial court’s findings. 11 If a party is attacking the legal

sufficiency of an adverse finding on an issue on which the party had the burden

of proof, and there is no evidence to support the finding, we review all the




      7
       Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d
142, 156 (Tex. 2014).
      8
       Id.
      9
       Burbage v. Burbage, 447 S.W.3d 249, 259 (Tex. 2014).
      10
          Waste Mgmt., 434 S.W.3d at 156.
      11
          Id.


                                           7
evidence to determine whether the contrary proposition is established as a

matter of law. 12

                                  Actual Malice

      In a defamation case in which actual malice is required and is found, the

First Amendment requires appellate courts to conduct an independent review of

the evidence supporting the finding. 13 The Texas Supreme Court has described

the review we must conduct and the deference we must give to factfinder’s

determinations of credibility.

            The independent review required by the First Amendment is
      unlike the evidentiary review to which appellate courts are
      accustomed in that the deference to be given the fact finder’s
      determinations is limited. Indeed, the [United States] Supreme Court
      has stated that “[t]he question whether the evidence in the record in
      a defamation case is sufficient to support a finding of actual malice is
      a question of law.” On questions of law we ordinarily do not defer to
      a lower court at all. But the sufficiency of disputed evidence to
      support a finding cannot be treated as a pure question of law when
      there are issues of credibility.

             ....

            . . . . [A]n independent review of evidence of actual malice
      should begin with a determination of what evidence the jury must
      have found incredible. . . . As long as the jury’s credibility
      determinations are reasonable, that evidence is to be ignored. Next,
      undisputed facts should be identified. . . . Finally, a determination
      must be made whether the undisputed evidence along with any




      12
       Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Sterner v.
Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).
      13
        Bentley v. Bunton, 94 S.W.3d 561, 597 (Tex. 2002).


                                         8
     other evidence that the jury could have believed provides clear and
     convincing proof of actual malice. 14

                                 IV. Discussion

                                 A. Defamation

     Cummins’s first five issues challenge the award of damages for

defamation. Her issues are:

     1. Are Appellees Amanda Lollar, BWS, limited-purpose public figures
     with respect to their voluntary and public participation in animal and
     bat care?

     2. Are statements about Appellees, public safety, public health,
     government action, statements about matters of public concern?

     3. Did Appellees present “more than a scintilla” of evidence that any
     of the supposed defamatory statements meets all four of the
     following criteria?

           a. is a verifiable statement of fact;

           b. is false or not substantially true;

           c. is of and concerning Appellees; and

           d. is capable of conveying a defamatory meaning about
           Appellees?

     4. Did the trial court err in granting [Lollar and BWS] judg[]ment
     against Appellant for defamation?

     5. Were Appellees entitled to the amount of compensatory or
     exemplary damages awarded?

     We first address Cummins’s arguments regarding BWS’s entitlement to

judgment for defamation. 15 The record does not disclose when in 2010 BWS


     14
       Id. at 597–99.


                                         9
incorporated, but before incorporating, BWS was a nonprofit association. Thus,

at all times relevant to this suit, BWS was an entity distinct from Lollar. 16

Although the petition alleged that Cummins made false, defamatory statements

about both Lollar and BWS, BWS did not ask for damages for defamation. 17 And

the trial court awarded BWS only the breach of contract damages it had asked

for. Accordingly, because there is no judgment for BWS for defamation, we do

not address Cummins’s arguments about the sufficiency of the evidence to

support the judgment for defamation as to BWS.

                      1. Law of Defamation in Texas

      To prevail on a defamation claim, a plaintiff must prove that the defendant

published a statement that was defamatory concerning the plaintiff and, generally,

that the defendant did so with some degree of fault regarding the truth of the

statement—with actual malice if the plaintiff is a public official or public figure or



      15
        See Waste Mgmt., 434 S.W.3d at 150 n.35 (noting that a corporation
may sue for defamation but a business may not; the owner of a business may
sue for defamation and a business may sue for business disparagement).
      16
         See Tex. Bus. Org. Code Ann. § 252.006(a) (West 2012) (“A nonprofit
association is a legal entity separate from its members for the purposes of
determining and enforcing rights, duties, and liabilities in contract and tort.”);
Daniels v. Empty Eye, Inc., 368 S.W.3d 743, 752 (Tex. App.—Houston [14th
Dist.] 2012, pet. denied) (observing that a corporation and its president are
distinct entities).
      17
       See Waste Mgmt., 434 S.W.3d at 150 n.35. See Burbage, 447 S.W.3d
at 261 n.6, for a discussion of the differences between a claim for defamation
and one for business disparagement.


                                         10
with negligence if the plaintiff is a private individual. 18 In some cases, the plaintiff

must also prove that the statements were false. 19

      “A statement is defamatory when a person of ordinary intelligence would

interpret it in a way that tends to injure the subject’s reputation and thereby

expose the subject to public hatred, contempt, or ridicule, or financial injury, or to

impeach the subject’s honesty, integrity[,] virtue, or reputation.” 20 A defamatory

statement may be classified as either defamatory per se or defamatory per quod.

A statement is defamatory per se if it is injurious to a person’s office, business,

profession, or occupation or if it falsely charges a person with the commission of

a crime. 21 A statement is defamatory per se if it is defamatory on its face, that is,

if it is “so obviously hurtful to the person aggrieved” that the law requires no proof

of its injurious character to make it actionable. 22 Statements are defamatory per




      18
       In re Lipsky, 411 S.W.3d 530, 543 (Tex. App.—Fort Worth 2013, orig.
proceeding).
      19
          See, e.g., Hearst Corp. v. Skeen, 159 S.W.3d 633, 637 n.1 (Tex. 2005)
(“Proving falsity in a public-figure defamation case is the plaintiff’s burden of
proof.”).
      20
       Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 728 (Tex. App.—
Houston [14th Dist.] 2013, pet. denied) (citing Turner v. KTRK Television, Inc., 38
S.W.3d 103, 114–15 (Tex. 2000), and Tex. Civ. Prac. & Rem Code. Ann.
§ 73.001.
      21
       Morrill v. Cisek, 226 S.W.3d 545, 549–50 (Tex. App.—Houston [1st Dist.]
2006, no pet.).
      22
        Id.


                                           11
quod if they are not obviously hurtful and require the plaintiff to show their

defamatory meanings through extrinsic evidence. 23

      Defamation law has evolved substantially since this country’s founding. 24

Under the early common law of defamation, no degree of fault was required; a

person was strictly liable for making defamatory statements. 25          And hostile

criticism against the government was actionable even if the critical statements

were true. 26 Over time, the law evolved to provide some privileges, such as the

privilege of “fair comment.” 27 Additionally, even in early cases in this country, the

law allowed truth as a defense. 28

      23
       Hotchkin v. Bucy, No. 02-13-00173-CV, 2014 WL 7204496, at *4 (Tex.
App.—Fort Worth Dec. 18, 2014, no. pet.) (mem. op.); Meisel v. U.S. Bank, N.A.,
396 S.W.3d 675, 680 (Tex. App.—Dallas 2013, no pet.).
      24
        Curtis Pub. Co. v. Butts, 388 U.S. 130, 151, 87 S. Ct. 1975, 1989 (1967).
      25
        Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766 (Tex. 1987); John
E. Hallen, Fair Comment, 8 Tex. L. Rev. 41, 53 (1929); see also John J. Watkins
& Charles W. Schwartz, Gertz and the Common Law of Defamation: of Fault,
Nonmedia Defendants, and Conditional Privileges, 15 Tex. Tech. L. Rev. 823,
825 (1984).
      26
        Hallen, supra note 25, at 53; see also Curtis Pub., 388 U.S. at 151, 87 S.
Ct. at 1989.
      27
        Milkovich v. Lorain Journal Co., 497 U.S. 1, 13–14, 110 S. Ct. 2695,
2703 (1990) (observing that the privilege of “fair comment” was incorporated into
the common law); Cain v. Hearst Corp., 878 S.W.2d 577, 581 (Tex. 1994)
(discussing various privileges); Hallen, supra note 25, at 41–42.
      28
        See Hallen, supra note 25, at 53–54 (citing Commonwealth v. Clap, 4
Mass. 163, 169 (1808)); see also Neely v. Wilson, 418 S.W.3d 52, 62 (Tex. 2013,
pet. denied) (noting that “[t]he common law and statutes provide certain defenses
and privileges to defamation claims”).


                                         12
      Significant changes to modern defamation law began with New York Times

v. Sullivan, in which the United State Supreme Court held that, aside from

whatever standards a state might use to determine a defendant’s entitlement to

defamation privileges under state law, the First Amendment imposes its own

limits in defamation actions brought by public officials against those who have

criticized their official conduct. 29    In those cases, the First Amendment’s

guarantees of free speech and of a free press prohibit strict liability for

defamatory statements, and a plaintiff must prove that the statements were made

with “actual malice.” 30

      The term “malice” was already used in defamation law in negating the

availability of privileges under state law, and in that context, malice referred to

spite or ill-will. 31 But in the context of defining the constitutional privilege under

which the plaintiff must prove fault, the Supreme Court used that term to mean

the degree of knowledge the defendant had about the truth of that statement. 32

Specifically, the Court held that a defendant acts with actual malice if the

defendant publishes the statement “with knowledge that it was false or with


      29
        376 U.S. 254, 279, 283, 84 S. Ct. 710, 726–27 (1964).
      30
        Id. at 280–81, 84 S. Ct. at 726.
      31
         See, e.g., Holt v. Parsons, 23 Tex. 9, 20 (1859) (stating that to be
classified as a privileged communication, a statement must have been made free
from malicious intent).
      32
        New York Times, 376 U.S. at 279–80, 84 S. Ct. at 726.


                                           13
reckless disregard of whether it was false or not.” 33 Because ‘“actual malice

concerns the defendant’s attitude toward the truth, not toward the plaintiff,’” a

defendant’s “free-floating” feeling of ill will toward a plaintiff is generally irrelevant

to proving actual malice. 34

       In Curtis Publishing Company, a plurality of the Supreme Court held that

the actual malice requirement applies to defamation actions brought by public

figures. 35   And in Rosenbloom v. Metromedia, Inc., a plurality of the Court

concluded that “[i]f a matter is a subject of public . . . interest, it cannot suddenly

become less so merely because a private individual is involved,” and therefore




       33
        Id.; Masson v. New Yorker Magazine, 501 U.S. 496, 510–11, 111 S. Ct.
2419, 2429–30 (1991) (describing this standard as requiring proof that the author
“entertained serious doubts as to the truth of his publication or acted with a ‘high
degree of awareness of . . . probable falsity’”) (citations omitted); see also
Watkins & Schwartz, supra note 25, at 870–71 (noting the difficulty courts have
had with the interplay between the ill will malice standard used to defeat a state
law privilege and the “constitutional malice standard” required under the First
Amendment).
       34
         Freedom Newspapers of Tex. v. Cantu, 168 S.W.3d 847, 858 (Tex.
2005) (quoting New Times, Inc. v. Isaacks, 146 S.W.3d 144, 165 (Tex. 2004) and
stating that “[w]hile a personal vendetta demonstrated by a history of false
allegations may provide some evidence of malice, free-floating ill will does not”).
       35
         388 U.S. at 164, 170, 172, 87 S. Ct. at 1996, 1999, 2000; see Gertz v.
Robert Welch, Inc., 418 U.S. 323, 342, 94 S. Ct. 2997, 3008 (1974) (stating that
people may be classed as public figures either “by reason of the notoriety of their
achievements” or because of “the vigor and success with which they seek the
public’s attention”).


                                           14
the constitutional privilege applies to suits brought by private persons if the

statements forming the basis of the suit were on a subject of public interest. 36

      Then, in Gertz, the Court backed off from Rosenbloom’s holding,

concluding that a state’s interest in compensating private plaintiffs for injury to

reputation requires that a different rule apply to defamation claims they bring. 37

That Court did, however, reaffirm application of the New York Times privilege to

public figures. In doing so, it acknowledged that a person may become a public

figure in one of two ways: by achieving such pervasive fame or notoriety that

they may be considered a public figure “for all purposes and in all contexts,” and

by injecting his or herself or being “drawn into a particular public controversy,”

“thereby becom[ing] a public figure for a limited range of issues.” 38

      While the Gertz court held that the New York Times constitutional privilege

is not available to media defendants in suits brought against them by private

individuals, it also held that in such cases, some degree of fault must be

proven—and thus, there can be no strict liability in defamation suits against




      36
         403 U.S. 29, 43, 91 S. Ct. 1811, 1819 (1971), abrogated by Gertz, 418
U.S. 323, 94 S. Ct. 2997. Justice Marshall dissented, pointing out that the under
that rule, “courts will be required to somehow pass on the legitimacy of interest in
a particular event or subject.” Id. at 79, 91 S. Ct. at 1837.
      37
        418 U.S. at 343, 94 S. Ct. at 3008–09.
      38
        Id. at 351, 94 S. Ct. at 3012–13.


                                         15
media defendants. 39 But the Court left it to the individual states to decide what

degree of fault had to be proven. 40

      Gertz also addressed damage awards in such cases, holding that states

may not permit recovery of presumed or punitive damages unless actual malice

is proven. 41 As for Rosenbloom’s public concern standard, the Gertz court stated

that using that standard in a suit brought by a private person would force judges

“to decide on an ad hoc basis which publications address issues of ‘general or

public interest’ and which do not.” 42

      In summary, after Gertz, a public figure suing a media defendant for

defamation was required to show actual malice. A private figure suing a media

defendant was required to show at least negligence, but unless state law

required it, the plaintiff did not have to show actual malice, even if the defamatory

statements were on a matter of public concern. 43 The private plaintiff would,




      39
        Id. at 346–47, 94 S. Ct. at 3010.
      40
        Id.; Neely, 418 S.W.3d at 61.
      41
        Gertz, 418 U.S. at 349, 94 S. Ct. at 3011.
      42
        Id. at 346, 94 S. Ct. at 3010. In his dissent, Justice Brennan disagreed
with the majority’s failure to provide to the media the same level of constitutional
protection when its “reports concern private persons’ involvement in matters of
public concern” as it did for reporting about public officials and figures. Id. at 362,
94 S. Ct. at 3019 (Brennan, J., dissenting).
      43
        Id. at 345–47, 94 S. Ct. at 3010.


                                          16
however, have to show actual malice when suing a media defendant in order to

recover either presumed or punitive damages. 44

      In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., the Court

considered the First Amendment’s application to defamation cases in which the

plaintiff and defendant are both private persons and the speech involved is purely

private speech—that is, speech that does not involve matters of public concern. 45

Dun & Bradstreet involved statements about Greenmoss Builders in a credit

report sent by Dun & Bradstreet to five of its subscribers. 46

      In a plurality opinion, the Court discussed Gertz and characterized that

opinion as holding that a plaintiff had to show actual malice to recover presumed

and punitive damages if the plaintiff was a private individual who sued a media

defendant “for a libel that involved a matter of public concern.” 47 After discussing

the competing interests involved, the plurality held that when defamation suits

involve only private parties, “[i]n light of the reduced constitutional value of

speech involving no matters of public concern,” a state’s interest in providing

remedies for defamation “adequately supports awards of presumed and punitive




      44
        Id. at 349, 94 S. Ct. at 3011.
      45
        472 U.S. 749, 751, 105 S. Ct. 2939, 2941 (1985).
      46
        Id. at 751, 105 S. Ct. at 2941.
      47
        Id.


                                          17
damages—even absent a showing of ‘actual malice.’” 48 Thus, a private plaintiff

suing a media defendant had to prove actual malice to recover presumed or

punitive damages, regardless of the subject matter of the statements, but a

private plaintiff suing a private defendant did not have to prove actual malice to

recover presumed or punitive damages if the speech was on a matter of private

concern. The opinion did not set out a standard for recovering such damages in

suits when the plaintiff and defendant are private individuals and the speech is on

a matter of public concern.

      In Philadelphia Newspapers, Inc. v. Hepps, the Court once again brought

up the “public concern” standard. 49 The Court considered New York Times and

its progeny and stated that from those cases, one could discern “two forces that

may reshape the common-law landscape to conform to the First Amendment.

The first is whether the plaintiff is a public official or figure, or is instead a private

figure. The second is whether the speech at issue is of public concern.” 50

      With these two forces in mind, the Hepps Court added another limitation

on the common law of defamation, this time addressing the common law

presumption that defamatory speech is false. 51 The Court held that “when a


      48
        Id. at 761, 105 S. Ct. at 2946 (emphasis added).
      49
        475 U.S. 767, 106 S. Ct. 1558–59 (1986).
      50
        Id. at 775, 106 S. Ct. at 1563.
      51
        Id. at 768–69, 106 S. Ct. at 1559.


                                           18
plaintiff seeks damages against a media defendant for speech of public concern,”

it is not enough to satisfy the First Amendment for a state to allow the defense of

truth; instead, the plaintiff must bear the burden of proving the statements were

false. 52 Hepps involved a media defendant, and the Court expressly declined to

state whether the rule it set out applied equally to nonmedia defendants. 53 This

question of in what circumstances, if any, a private figure plaintiff suing a

nonmedia defendant has the burden of proving that a defamatory statement is

false has not been answered by the Supreme Court.

      In Texas, with respect to the level of fault that must be proven in

defamation actions, we require a plaintiff who is a public official or figure to show

actual malice, regardless of whether the defendant is a member of the media or a

private individual. 54 When the plaintiff is a private figure suing a media defendant,

      52
        Id. at 777, 106 S. Ct. at 1564 (emphasis added).
      53
         Id. at 779 n.4, 106 S. Ct. at 1565. In his concurring opinion, Justice
Brennan complained that “such a distinction is irreconcilable with the
fundamental First Amendment principle that [t]he inherent worth of . . . speech in
terms of its capacity for informing the public does not depend upon the identity of
the source, whether corporation, association, union, or individual.” Id. at 780,
106 S. Ct. at 1565 (Brennan, J., concurring) (citations and internal quotation
marks omitted); see also Babbitt v. United Farm Workers Nat’l Union, 442 U.S.
289, 309 n.16, 99 S. Ct. 2301, 2314 (1979) (“We have not adjudicated the role of
the First Amendment in suits by private parties against nonmedia defendants.”).
      54
          Neely, 418 S.W.3d at 61; Casso v. Brand, 776 S.W.2d 551, 554 (Tex.
1989) (stating that the court was “reluctant to afford greater constitutional
protection to members of the print and broadcast media than to ordinary citizens”
and therefore holding that when a public figure sues a private individual, the
plaintiff must prove that the defendant made false and defamatory statements
about the plaintiff with actual malice).


                                         19
the plaintiff must show negligence. 55 Based on Gertz and Dun & Bradstreet, the

Texas Supreme Court has recognized that “in a defamation suit between private

[parties] concerning private speech, recovery of presumed and punitive damages

does not violate the First Amendment,” but in even such cases, Texas requires

the plaintiff to prove at least negligence. 56   That court has not addressed,

however, whether the plaintiff must prove fault when the suit is between private

individuals, concerns private speech, and is for defamation per quod (and thus

no damages are presumed).

      Regarding proof of the truth or falsity of defamatory statements, a plaintiff

in Texas must prove that the statements are false if the defendant is a member of

the media and the statement is a matter of public concern. 57 Neither the United

States Supreme Court nor the Texas Supreme Court has required proof of falsity

by more than a preponderance of the evidence. 58 The Texas Supreme Court

has thus far not abrogated the common law rule that the truth is a defense in




      55
       Neely, 418 S.W.3d at 61.
      56
       Hancock v. Variyam, 400 S.W.3d 59, 65, n.7 (Tex. 2013).
      57
       See Hepps, 475 U.S. at 776, 106 S. Ct. at 1563; Neely, 418 S.W.3d at
62.
      58
       See Bentley, 94 S.W.3d at 587.


                                       20
cases in which the defendant is not a member of the media and the statements

are not on a matter of public concern. 59

      Because this case involves defamation posted on the internet, we make

one more observation on the evolution of defamation law. In Gertz, one basis

used by the Supreme Court for distinguishing between public officials and figures

on the one hand and private individuals on the other was the “greater access to

the channels of effective communication” that public officials and figures usually

have compared with private individuals and the resulting “more realistic

opportunity to counteract false statements,” with the result that “[p]rivate

individuals are therefore more vulnerable to injury.” 60 Today, with the advent of

the internet and the widespread use of social media, this assessment is less true

than it once was.

      Furthermore, the United States Supreme Court has recognized “the

special and constitutionally recognized role of [the press] in informing and

educating the public, offering criticism, and providing a forum for discussion and

debate,” 61 entitling it to special protections under the First Amendment. Though

      59
         See Casso, 776 S.W.2d at 555 n.3 (“We need not at this time decide
whether every plaintiff in any defamation case, regardless of his status or that of
the defendant, must prove falsity as an element of his cause of action.”); see also
Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995)
(continuing to apply the rule that “[i]n suits brought by private individuals, truth is
an affirmative defense to slander”).
      60
        418 U.S. at 344, 94 S. Ct. at 3009.
      61
        Herbert v. Lando, 441 U.S. 153, 189, 99 S. Ct. 1635, 1655 (1979).


                                            21
the media still serves that important purpose, private citizens now have a greater

ability to also serve that role, though usually to a lesser degree.

      Neither the United States Supreme Court nor the Texas Supreme Court

has seen the need to adjust defamation law in light of the changes in

technology. 62 Thus, for now, we continue to distinguish among categories of

plaintiffs and defendants. 63 With this background in mind, we turn to Cummins’s

issues.

                2. Sufficiency of the Evidence to Show Defamation

      In her first issue, Cummins argues that the judgment is erroneous because

Lollar is a limited-purpose public figure who had the burden to prove that the

statements Cummins made were false, and she failed to meet that burden.

Whether a party is a limited-purpose public figure is a question of law for the

court. 64 In answering that question, courts use a three-part test.

      First, there must be a public controversy or issue. 65 In this context, the

term “public controversy” means one that is “public both in the sense that people


      62
          See Kinney v. Barnes, 443 S.W.3d 87, 100–01 (Tex. 2014).
      63
         But see Watkins & Schwartz, supra note 25, at 849–50 (acknowledging
that “public opinion is affected each day by the communications between millions
of private persons,” and “an individual’s attitude toward political issues is formed
not only by the institutional media, but also by communications in family groups,
social groups, work groups, and peer groups in general” (citations omitted)).
      64
          Neely, 418 S.W.3d at 70.
      65
          Id.


                                         22
are discussing it and [that] people other than the immediate participants in the

controversy are likely to feel the impact of its resolution.” 66 The controversy must

be about some specific question, not merely a general concern or interest. 67 It

does not include every matter in which the public is interested or that has

attracted attention; “it must be a real dispute, the outcome of which affects the

general public or some segment of it in an appreciable way,” one that “has

received public attention because its ramifications will be felt by persons who are

not direct participants.” 68 We may also look to whether “the press was covering

the debate, reporting what people were saying and uncovering facts and theories

to help the public formulate some judgment.” 69

      The second part of the test looks at the plaintiff’s relation to the

controversy; “the plaintiff must have more than a trivial or tangential role in the

controversy.” 70 As the United States Supreme Court has said, people classed as

public figures have usually “thrust themselves to the forefront of particular public

controversies in order to influence the resolution of the issues involved,” thereby



      66
        Id.
      67
        WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 572 (Tex. 1998).
      68
         Einhorn v. LaChance, 823 S.W.2d 405, 411–12 (Tex. App.—Houston [1st
Dist.] 1992, writ dism’d w.o.j.).
      69
        McLemore, 978 S.W.2d at 572 (quotation omitted).
      70
        Neely, 418 S.W.3d at 70.


                                         23
inviting attention and comment. 71       The Texas Supreme Court has found it

instructive to consider “(1) whether the plaintiff actually sought publicity

surrounding the controversy; (2) whether the plaintiff had access to the media;

and (3) whether the plaintiff ‘voluntarily engag[ed] in activities that necessarily

involve[d] the risk of increased exposure and injury to reputation.’” 72

      Finally, under the third part of the test, “the alleged defamation must be

germane to the plaintiff’s participation in the controversy.” 73

      Cummins asserts that Lollar was “the subject of local and state-wide

debate and discussion years before” Cummins’s posting of statements about her

on the internet. She points to numerous books and articles that Lollar had written

in the years prior to Cummins’s internship. These materials relate to the care

and treatment of bats. These books do not show that Lollar was the subject of

local and statewide debate.

      Cummins does not explain what specific controversy the writings relate to

or how, by writing the material, Lollar played a role in or inserted herself into the

controversy. 74 And from our review of the record, we have found no such public


      71
        Gertz, 418 U.S. at 344–45, 94 S. Ct. at 3009.
      72
        McLemore, 978 S.W.2d at 573 (brackets in original).
      73
        Neely, 418 S.W.3d at 70.
      74
        See Hutchinson v. Proxmire, 443 U.S. 111, 135, 99 S. Ct. 2675, 2688
(1979) (stating that before defamatory statements were made about the plaintiff,
he had published writings that reached only “a relatively small category of
professionals,” that the plaintiff had not “thrust himself or his views into public

                                          24
controversy. Cummins argues “[t]he controversy at issue here had and still has

potentially far-reaching effects throughout the state” because BWS bats have

tested positive for rabies and “[Lollar] also stated [that] she intends to treat bats

with White Nose Syndrome[,] which is also contagious.”           But we found no

evidence in the record showing that Lollar’s writings about the care and treatment

of bats related to any controversy about bats with rabies, that there is any

specific controversy over the issue into which Lollar has injected herself, or that

treatment of bats with White Nose Syndrome is a public controversy into which

Lollar has involved herself.

      We have found no evidence to support Cummins’s contention that Lollar is

a limited-purpose public figure. Based on the evidence in the record, we cannot

say that any conclusion that Lollar was not a limited-purpose public figure was

erroneous. We overrule Cummins’s first issue.

      In her second issue, Cummins argues that her statements were about

matters of public concern because her comments were criticisms of Lollar’s care

of bats. For purposes of allocating the burden of proving the truth or falsity of a

statement, 75 speech is on a matter of public concern “when it can ‘be fairly


controversy to influence others,” and that the defendants had “not identified such
a particular controversy; at most, they point[ed] to concern about general public
expenditures,” a “concern is shared by most and relates to most public
expenditures” and “is not sufficient to make [the plaintiff] a public figure”).
      75
         See Klentzman v. Brady, No. 01-11-00765-CV, 2014 WL 7205206, at *11
(Tex. App.—Houston [1st Dist.] Dec. 18, 2014, pet. filed) (op. on reh’g) (“Whether
a plaintiff is a limited-purpose public figure who has involved himself in a public

                                         25
considered as relating to any matter of political, social, or other concern to the

community,’ or when it ‘is a subject of legitimate news interest; that is, a subject

of general interest and of value and concern to the public.’” 76 Cummins contends

that because her statements were about matters of public concern—and we

agree that allegations of animal cruelty can be a matter of public concern 77—

Lollar had to prove that Cummins’s statements were false.

      As noted above, neither the United States Supreme Court nor the

Supreme Court of Texas has required a private plaintiff to prove the falsity of

defamatory statements in suits against nonmedia defendants, even when the

statements are on matters of public concern. 78 Lollar is not a public figure, and

Cummins is not a media defendant, and therefore the defamatory statements are

presumed false. But our disposition of this appeal would not change even if

Lollar had to prove the falsity of the statements. As we discuss under Cummins’s

controversy and whether an article addresses a matter of public concern are two
separate legal inquiries with their own implications for defamation law.”).
      76
        Snyder v. Phelps, 562 U.S. 443, 131 S. Ct. 1207, 1216 (2011) (citations
omitted).
      77
        See Tex. Penal Code Ann. § 42.09 (making cruelty to livestock animals
an offense), § 42.092 (West 2011) (making cruelty to domesticated living
creatures an offense).
      78
        See Hepps, 475 U.S. at 777, 779, 106 S. Ct at 1564, 1565 n.4. (stating
that “placement by state law of the burden of proving truth upon media
defendants who publish speech of public concern deters such speech” and that
the Court was not considering “what standards would apply if the plaintiff sues a
nonmedia defendant” (emphasis added)); Randall’s Food Mkts., 891 S.W.2d at
646.


                                        26
third and fourth issues, Lollar met that burden on enough of the statements to

support the trial court’s finding of defamation. We overrule Cummins’s second

issue. 79

       In her third and fourth issues, Cummins asserts that the trial court erred by

granting judgment for Lollar because Lollar did not present more than a scintilla

of evidence that statements Cummins made met the elements of defamation.

Because Cummins’s brief argues these issues together, we shall address them

together.

       Cummins argues that the statements were not defamatory because (1)

most of the statements are not verifiable assertions of fact and (2) they are not

opinions that imply the existence of undisclosed facts because the statements

“are linked to supporting files written by others including government agencies.”

She contends some of the statements were taken from reports made to

government agencies, and the other statements are linked to documents written

by government agencies, 80 which show the factual basis of her opinion.

       This argument does not merit much discussion. While Cummins did post

statements about her opinion of Lollar, Lollar’s claim was based on other

       79
       The Cambodia Wildlife Sanctuary’s brief states that “actual documents
and photographs” proved that Lollar committed animal cruelty. We commend the
Sanctuary for its advocacy for the protection of animals, but if such documents or
photographs exist, they were not included in the appellate record.
       80
        See Rehak Creative Servs., 404 S.W.3d at 732 (stating that linked
documents were part of the context that had to be considered in addressing what
a website conveyed about the plaintiff).


                                        27
statements alleging facts about Lollar. To the extent that Cummins may have

linked to government reports on her website, the record does not indicate to what

documents or websites the hyperlinks in Cummins’s online statements were

directed, and the government communications that are in the record do not

support Cummins’s version of facts, as we discuss in greater detail below. We

overrule this part of Cummins’s third and fourth issues.

      Similarly unpersuasive is Cummins’s argument that some of the

statements were taken from reports made to government agencies and therefore

could not form the basis of Lollar’s defamation claim. While a privilege can exist

for statements made to government agencies, 81 Cummins was not making a

report to a government agency when she posted the statements on her website.

Furthermore, defamation privileges may be either absolute or conditional, 82 and

Cummins does not tell us which type of privilege applies either to the statements

she made to government officials or to her reposting of those communications, or

why any such privilege applies. 83 We overrule this part of her third and fourth

issues.



      81
         See Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 768 (Tex. 1987)
(stating that not all communications to public officials are privileged).
      82
          Id. (discussing defamation privileges and stating that the conditional
privilege that applies to statements made in the public interest is defeated when
the privilege is abused).
      83
          See Tex. R. App. P. 38.1(i).


                                         28
      Cummins argues that one of the videos relied on by Lollar to show

defamation was shared with Lollar’s permission and therefore cannot support a

defamation claim.    The video shows Lollar performing an episiotomy on a

pregnant bat in labor.

      The argument is unavailing.     Lollar alleged that Cummins had added

captions to the video that mischaracterized what was happening in the video and

in which she accused Lollar of animal cruelty. Assuming for the sake of this

argument that Cummins had permission to post the raw video footage, she did

not have (and does not argue that she had) permission to post the video as

amended with those added captions. Lollar further testified that the video had

been edited to be misleading in that Cummins removed the part of the video

showing Lollar administering pain medication. Because it is the captions and

editing that Lollar alleged were defamatory, it is irrelevant whether Cummins had

permission to post the original, uncaptioned, unedited video. We overrule this

part of Cummins’s third and fourth issues.

      Cummins further argues that ten of the complained-of statements are not

about and do not refer to Lollar and do not meet the requirement that the

defamatory statements point to Lollar and no one else. 84 The trial court admitted


      84
        Kaufman v. Islamic Soc. of Arlington, 291 S.W.3d 130, 144 (Tex. App.—
Fort Worth 2009, pet. denied) (‘“In order to entitle one to maintain an action for
an alleged defamatory statement, it must appear that he is the person with
reference to whom the statement was made.’”) (quoting Newspapers, Inc. v.
Matthews, 339 S.W.2d 890, 893 (1960)).


                                       29
into evidence an exhibit consisting of hard copies of postings about Lollar on

Cummins’s Facebook, Twitter, and YouTube accounts, as well as pages

discussing Lollar posted on Cummins’s Animal Advocates website. This exhibit

is nearly 100 pages long, and the statements complained of were primarily from

these pages.

      Of the ten statements, one specifically refers to “Defendants,” and the rest

were posted on the Animal Advocates website on a page dedicated to talking

about Lollar and her lawsuit against Cummins. When looking at the statements

in their context, it is clear to whom Cummins is referring in her statements. For

example, as we discuss below, two of the statements allege that Lollar’s dogs

were neglected and that one of the dogs died from the neglect, and it is clear that

it is Lollar who Cummins is accusing of the neglect. 85 We overrule this part of

her third and fourth issues.

      We now turn to the specific statements made by Cummins and her

arguments about the sufficiency of the evidence to support the defamation

finding. Most of statements fall into one of three categories: allegations that

Lollar committed animal cruelty, allegations that Lollar committed fraud, and

allegations that Lollar violated a law, rule, standard, or regulation.




      85
        See Tex. Penal Code Ann. § 42.092 (making it an offense for a person to
intentionally, knowingly, or recklessly fail unreasonably to provide necessary care
for a domesticated animal in the person’s care).


                                          30
         For most of the statements, Cummins argues that Lollar failed to prove that

the statements were false.       And for most of the statements, Cummins either

expressly asserts that she proved the statements are true or points to some

place in the record that she contends shows the truth of the statement. Cummins

further argues that most of the statements are not capable of a defamatory

meaning.

                             Allegations of Animal Cruelty

         Cummins accused Lollar of cruelty to bats and to two of Lollar’s pet dogs.

Cummins claimed that one of the dogs had severe periodontal disease because

of Lollar’s neglect and that rather than have the condition treated, Lollar had the

dog euthanized. Cummins claimed that another dog could not walk and had to

drag itself around by its front legs and that it had nails so long that it could not

stand.

         The gist of Cummins’s statements about the dogs is that Lollar’s

veterinarian records show that when Lollar’s dog had moderate periodontitis, the

veterinarian recommended treatment, but instead, Lollar refused treatment and

considered euthanizing the dog. Lollar then neglected treating her dog until the

dog was in poor condition and was in so much pain it could not eat, at which

point Lollar had the dog euthanized. Cummins asserted that the dog “died from

neglect of care” and that “[i]t’s all in her vet records.”

         In another paragraph, in which Cummins also accused Lollar of letting two

bats die from neglect and impersonating a doctor to illegally obtain rabies


                                           31
vaccines, Cummins again asserted that Lollar ignored her veterinarian’s advice

to have her dog’s teeth cleaned. Elsewhere Cummins made the statement that

“[o]n top of this her old dog that was euthanized was in really bad shape. One

had end stage periodontal disease with tons of tartar. Why didn’t she have her

vet clean the dog’s teeth instead of letting it get worse?”

      Cummins asserted that Lollar’s other dog could not walk and could only

drag herself by her front legs and that during pretrial proceedings Lollar kept

changing her story about whether the dog could walk or not. Cummins stated,

“There is something really wrong here for her to make up these stories,” and

“Why not get [the dog] a cart?        I would not let my dog drag itself around.”

Elsewhere on her website, Cummins stated that Lollar’s lying about the matter

“seems pathological.”

      All of Cummins’s statements on the matter are defamatory per se because

they are directed at Lollar, Lollar is a wildlife rehabilitator and conservationist,

and these statements accuse her of, at a minimum, animal neglect.             These

statements do not merely generally disparage her character or reputation; they

ascribe to Lollar “conduct, characteristics[,] or a condition that would adversely

affect [her] fitness for the proper conduct of [her] lawful . . . profession,” and as

such, they injure her in her profession. 86



      86
        See Hancock, 400 S.W.3d at 66–67 (citing the Restatement (Second) of
Torts to “more fully define” a statement “that injures one in her profession”).


                                          32
       Cummins argues that some of her statements described what she

witnessed at BWS, and the rest of the information she posted came directly from

veterinary records produced by Lollar in discovery, which Cummins says she

linked to on the webpage on which the statements were posted. But we cannot

say exactly what the veterinarian records contained because Cummins did not

introduce those records into evidence. We may not take Cummins’s word for it

that the website linked to the records or that the records say what she contends

they do. 87

       Cummins also contends that Lollar’s actions “meet the legal definition of

animal neglect” and that her statement to that effect was her opinion, not a fact

on which a defamation claim may be based. But the statements that she used to

explain the basis of her opinion are set out as affirmative facts, and those facts

are defamatory.    Furthermore, Cummins does not cite any authority for the

proposition that Lollar’s actions meet a legal definition of animal neglect. 88 The

penal code’s definition of cruelty to a nonlivestock animal includes a person’s act

of intentionally, knowingly, or recklessly failing “unreasonably to provide

necessary . . . care . . . for an animal in the person’s custody,” 89 but as we


       87
       See Hotchkin, 2014 WL 7204496, at *6 (observing that we generally may
not consider matters outside the appellate record).
       88
        See Tex. R. App. P. 38.1(i) (requiring citations to relevant authority for
the arguments made in an appellant’s brief).
       89
        Tex. Penal Code Ann. § 42.092(b)(3).


                                        33
discuss next, Lollar produced evidence that she did not fail to provide necessary

care for her dogs.

      From our review of the record, the only evidence that supports Cummins’s

statements about the dog that could not walk was her own testimony. Cummins

stated that “when I was there, I saw [the dog] dragging herself. I did not see her

run and jump.”       And she stated that Lollar’s dogs all had long nails, which

Cummins believes is cruel.       Cummins asserts that one of her trial exhibits

includes a photograph of the dog with long rear claws, that she never saw the

dog stand, and that she only saw it drag itself. The exhibit she refers to contains

189 pictures, and she does not tell us to which picture she refers. We found ten

pictures with dogs in them. We cannot tell from the pictures whether any of the

dogs in the pictures have nails so long they would prevent a dog from standing.

None of the pictures show a dog having difficulty walking. As far as the dog she

alleged died from neglect, the only evidence that supports Cummins’s statements

is the testimony of Lollar and her veterinarian that the dog did have periodontitis.

      Lollar, contrary to Cummins’s argument, produced evidence that showed

the statements were false. Lollar stated that it was not true that one of her dogs

could not walk and had to drag itself. Lollar acknowledged that one of her dogs

“had a form of periodontitis,” but she went on to explain that

      [h]e was 19 years old when he was euthanized. It was too late to
      have any dental work done on him. Up until that point, he had
      maintained a very healthy mouth. But when an animal reaches an
      age that they’re too old to have anesthesia administered, there is no
      way to do any dental work on them because they might not wake up


                                         34
      from surgery. He was also at the very end of his life.         He was
      euthanized after he collapsed a—a few weeks after that.

      Dr. Tad Jarrett testified at trial. Dr. Jarrett is a Mineral Wells veterinarian

who worked with Lollar to develop standards of care for bats and whose practice

treats Lollar’s dogs. Cummins asked him about his treatment of the dog with

periodontitis.   He testified that the dog “was nearing the end of his life” and

“probably had some degree of periodontitis.” When asked if he advised Lollar to

treat the dog for the condition, he stated, “[y]ou know, that’s standard

recommendation for any dog with dental tartar.” When Cummins asked if Lollar

had asked him to euthanize the dog, Dr. Jarrett clarified that Lollar had not; she

had at one point asked him to evaluate the dog only to “see if it was time”

because “she didn’t know for sure, you know, and she was worried about his

overall health.” An associate veterinarian that worked for him was the person

who eventually euthanized the dog, and Dr. Jarrett stated that he was sure his

associate had made the correct decision.

      Dr. Janet Messner, a South Dakota veterinarian who visited BWS in 2011

to be trained by Lollar on bat care, testified by deposition.      She stated that

Lollar’s dog did not drag herself around. She testified that the dog had had

“some repair done, . . . probably thousands of dollars worth” and when she was

at BWS in the year after Cummins was there, the dog could walk and run. And

she stated that none of Lollar’s dogs seemed neglected or mistreated.




                                        35
      Sara Kennedy, a BWS volunteer in July 2010, testified by deposition and

was asked about the dog with periodontitis. She stated that he “ate and acted

pretty much normally” for a dog of his age. The dogs she saw at BWS were not

too thin or overweight and did not have overgrown claws.             When asked

specifically about the dog that Cummins claimed had to drag herself around,

Kennedy stated that she walked and ran. All the dogs she saw seemed “happy,

healthy, decently fed, well[-]groomed.”

      Kay Singleton testified for Cummins. Singleton was an intern at BWS at

the same time as Cummins and left the program early with Cummins. She stated

that she did not have a pleasant experience at BWS. But despite not being

favorably-minded toward Lollar, she did not testify that the dog Cummins spoke

of could not walk. Asked if she saw the dog run and jump, Singleton only stated,

“I don’t think any of them ran and jumped, as I recall they’re all old.” When asked

if any of the dogs dragged their legs, she stated that she could not recall much

about the dogs. Thus, Singleton’s testimony, though not helpful to Lollar, was

also not helpful to Cummins. We hold that the testimony of Lollar, Dr. Messner,

Dr. Jarrett, and Kennedy was sufficient to support a finding that Cummins’s

statements about the dogs were false. 90 We overrule her third and fourth issues

as to these statements.



      90
       See Bentley, 94 S.W.3d at 587 (stating that the preponderance of the
evidence standard applies to reviewing proof of falsity in a defamation case).


                                          36
      Cummins also made allegations that Lollar committed cruelty toward bats.

She stated that Lollar’s attorney was working for someone who commits animal

cruelty, and it is clear from the context of the statements that Lollar is the person

to whom Cummins was referring.          Cummins stated that Lollar’s method of

euthanizing bats is inhumane and causes the bats to die of suffocation. Lollar

uses the inhalant anesthetic Isoflurane for anesthesia and for euthanasia, and

Cummins alleged that Lollar’s use of the drug is illegal, inhumane, and unsafe.

      Cummins further stated that Lollar never washed her hands before

surgery, referencing a picture she took of Lollar that she claimed backed up her

statement, and she alleged that Lollar pulled molars out of a conscious bat.

Cummins then stated that bat experts “know that bats must be unconscious and

intubated.” She asked rhetorically, “Can you imagine the pain that bat felt?” She

referred to Lollar’s anesthesia technique as “cave man veterinary practice.”

      Cummins also accused Lollar of experimenting on bats, claiming that “[t]he

bats are dying because she doesn’t take them to the vet.” Elsewhere in the

paragraph in which this statement appeared, Cummins stated that Lollar

performs C-sections and amputation on bats even though Lollar is not a

veterinarian. Thus, the “experimenting” that Cummins appeared to be referring

to is performing surgery on bats without a veterinarian license.

      In another statement, Cummins accused Lollar of “hacking an animal to

death.”   This statement correlates with other statements in which Cummins

disagreed with Lollar’s version of what happened during the episiotomy that


                                         37
Cummins filmed, and in which she stated that Lollar “really needs to get her

vision checked.”

      As noted above, Cummins also posted the video of Lollar performing an

episiotomy, to which she added captions accusing Lollar of causing the bat’s

uterus to prolapse and of causing the bat to die from the procedure. On the

YouTube page on which Cummins posted the video, she added text underneath

the video box that states, “A woman performed a double episiotomy on a bat.

The bat had no local anesthesia.        The baby died.    This person is not a

veterinarian.” The first frame of video is a page of text stating, “This bat was

about to give birth. Amanda Lollar of Bat World Sanctuary decided to do an

episiotomy.   She did not give the bat pain relief.   She is not a veterinarian.

GRAPHIC ANIMAL CRUELTY!!!” Then during the video, the following captions

were added:

      “Amanda cuts the bat’s vagina with scissors three times
      Bat convulses near the end then passes out from schock [sic]”

      “She can’t tell the difference between a foot and baby’s head
      Amanda pulls too much and bat’s vagina, uterus prolapse”

      “Mom bat passes out from shock
      She later dies”

      “Baby is pink yet dead. It had just died.”

The last frame of the video displays text that states, “Amanda tries to glue the

incisions closed. She accidently glued [the bat’s] vagina shut. Mom later died.

Report Amanda Lollar for animal cruelty and neglect.”         These statements



                                        38
disparaging Lollar’s treatment of bats and accusing her of cruelty toward them

are defamatory per se because they injure Lollar in her profession as a bat

rehabilitator and as an expert in bat care. 91

      To prove the truth of these statements, Cummins relied primarily on her

own testimony.     Cummins testified that at BWS, she witnessed unspecified

violations of unspecified provisions of the Health Code, of Texas Parks & Wildlife

regulations, and of “the Animal Welfare Act.” She testified that a veterinarian’s

prescription is needed to use Isoflurane, that Lollar used Isoflurane “to basically

OD [bats] to euthanize them,” and that Lollar “performed surgery with anesthesia

without a veterinarian license or oversight and bats had been dying because of

the violations.”

      Cummins was asked why she stated online that Lollar had obtained

Isoflurane illegally, and Cummins responded, “[S]he didn’t tell me she got it from

her vet, she just told me she that has a source. It didn’t sound like it was legal.”

She testified that she “would think if it was a veterinarian [Lollar] would have told

[her], so [she] assumed it was another source.” Lollar’s attorney asked her, “At

the time you posted on the Internet that she was using Isoflurane illegally, you

did not know when you posted that whether she had gotten the Isoflurane from a

vet and was using it under the vet’s supervision?,” to which Cummins stated,

“Correct.” But she also stated that she still believed Lollar was using Isoflurane


      91
        See Hancock, 400 S.W.3d at 64, 66–67.


                                          39
illegally because Lollar did not administer it using the nebulizer method listed on

the label, and she believed that Lollar’s off-label use of the drug made the use

illegal.

       Regarding the episiotomy video, in her brief, Cummins cites a page from

the record as evidence that the captions are true. That page of the testimony

does not contain any evidence relating to the truth or falsity of the captions. She

asserts that Lollar admitted that the video shows Lollar performing an episiotomy.

But Lollar never denied that the video showed her performing an episiotomy; her

disagreement was over the content of the captions.

       Cummins admitted that she had never performed an episiotomy and had

never seen one done before she witnessed the one in the video. But she felt that

she was qualified to say what was happening in the video because she had

“done some research and asked questions” before she published the captions.

When asked why she believed that the bat from the episiotomy video had died,

she admitted that she just assumed she had died because she could not find the

bat after the surgery when she looked for her.

       We have not found evidence in the record proving by a preponderance of

the evidence the truth of Cummins’s captions that she added to the episiotomy

video. Instead, the record shows that Cummins made assumptions that she

represented as verifiable facts.

       Lollar, on the other hand, produced evidence refuting the content of the

captions. Lollar testified that the bat did not pass out from shock; that a person


                                        40
cannot use general anesthesia on a bat for this type of procedure and that she

gave the bat appropriate pain relief; that the bat jerked a little because she did

not want to be held, but she was not convulsing; that no prolapse occurred; that

she did not accidentally glue the bat’s vagina shut; that the bat pup was stillborn;

that the mother bat did not die and was released a few weeks after the

procedure; and that the method she follows is approved by her veterinarian.

        Dr. Jarrett, who trained Lollar to perform episiotomies, testified that he had

seen the video and that the procedure was “textbook” and “as good as it can

get.”   He further stated that the anesthetic was used properly and that no

prolapse had occurred.

        Dr. Messner testified that she had seen the video, that the episiotomy was

done properly, and that she had “absolutely” no criticisms of how the procedure

had been done. Applying the appropriate standard of review, this evidence is

legally sufficient to show that the captions that Cummins added were false.

        As for Cummins’s other statements about Lollar’s treatment of bats, Lollar

testified that Isoflurane is commonly used in wildlife rehabilitation centers, and

wildlife rehabilitators can procure it through a veterinarian that they work with. It

is not a substance that requires a DEA license. Lollar testified that the method

Cummins claimed was required to humanely and legally administer the drug is

one that is not always recommended or used. She testified that the method that

she uses is one that researchers and professionals in the field use and that the




                                          41
American Veterinary Medical Association recommends the method of euthanasia

she uses as a humane method of euthanasia.

      Dr. Jarrett testified that Lollar’s use of Isoflurane to euthanize bats is not

illegal. Dr. Messner stated that the nebulizer method of administering Isoflurane

is not always recommended for bats and that she uses the same method as

Lollar. The evidence is sufficient to support a finding that Cummins’s defamatory

statements about Lollar’s use of Isoflurane were false.

      Regarding Lollar’s method of extracting teeth from bats, Lollar testified that

the method she uses is one that she developed in conjunction with Dr. Jarrett.

The method, which involves applying a powerful topical anesthetic that is used

for dental extractions, was developed to be as pain free as possible. She stated

that microbats cannot be rendered completely unconscious with general

anesthesia for the procedure “because the cone that you would use to place over

their face to knock them out would be directly in your way” and “you wouldn’t be

able to extract the tooth.” She further stated that “[i]t takes, literally, a second to

extract the tooth,” but it takes five to fifteen minutes to render a bat completely

unconscious, so “it’s not practical and it’s not safe to anesthetize a bat under

general anesthesia just to extract a tooth.”

      Dr. Jarrett testified that in Texas, a person does not have to be a licensed

veterinarian to perform tooth extractions or episiotomies on bats. And he stated

that he taught Lollar how to perform those procedures. He further stated that he

had never seen Lollar commit animal cruelty.


                                          42
      Dr. Messner stated that she has never done a tooth extraction on a bat,

but if she did, she would use the same drug that Lollar uses. And she testified as

Lollar had that a person cannot use a cone to completely anesthetize a bat in

that situation; “you couldn’t do it. . . . [I]t really extends the procedure and it

makes it difficult.” This evidence is sufficient to support a finding that Cummins’s

statements about Lollar’s surgery on bats were false.

      In a video played at trial of Lollar treating a bat, she explained that her

hands were dirty in the picture because she had just rescued the bat, which was

a starving orphan bat, and she wanted to get him cleaned up and treated as

quickly as possible. Dr. Messner testified that when she visited BWS, the facility

was clean, the clinic was kept in sterile condition, and the room that Lollar uses

for emergency surgeries was “absolutely” sanitary enough for procedures.

Kennedy testified that the facility was cleaned at least once a day. And Lollar

testified that Cummins’s complaints resulted in her being investigated by various

law enforcement and government agencies, and they all reported that they found

no violations at BWS. We hold that Lollar showed by legally sufficient evidence

that the statements that Cummins made that alleged animal cruelty or neglect

were untrue and that Cummins did not produce sufficient evidence to prove that

the statements were true.      We overrule issues three and four as to these

statements.

      Cummins further challenges the judgment of defamation as to three

webpages that she was ordered to remove in their entirety. In her argument


                                        43
regarding these three pages, she specifically challenges only one statement on

each page. We cannot determine from the appellate record whether these three

statements appeared on those three particular pages because the judgment

does not explain the contents of those pages and copies of the pages do not

appear in the record before us. Thus, although the substance of these three

statements was discussed at trial, we cannot tell from the appellate record

whether they appeared on these particular webpages. As to the substance of

these three statements, however, the trial court did hear evidence about whether

they were true or defamatory.

      One of these three statements that Cummins argues was neither false nor

defamatory was this statement: “An email from the warden to Texas Parks &

Wildlife stating that bats are breeding in Lollar’s facility.” Although we did not find

this particular statement on the copies of Cummins’s internet postings that were

introduced at trial, the parties did introduce evidence about whether wardens with

the Texas Parks and Wildlife Department had found Lollar guilty of illegally

breeding bats at BWS in violation of its permit. As we explain in more detail

below, the evidence was sufficient to support a finding by the trial court that

Cummins’s statements to that effect were false and defamatory.

      The second of these three statements was, “Amanda Lollar’s 1994 manual

which she wrote. She stated that she euthanizes bats by freezing them to death

which is illegal and inhumane according to the AVMA and bat experts.” One of

the three webpages Cummins was ordered to remove included in the URL


                                          44
“amanda_lollar_1994_manual_original.pdf,”     and    the   parties   agreed   that

Cummins posted a copy of a 1994 manual that Lollar wrote about the care of

bats.   And regardless of whether this particular statement appeared on this

particular webpage, the evidence showed that Cummins asserted multiple times

on her website that the method of euthanasia that Lollar recommended in the

book was illegal and inhumane according to experts.         This statement was

defamatory per se because it injured Lollar in her profession, and Lollar

introduced evidence sufficient to support the judgment that Cummins’s

statements on the subject were false.

        The procedure that Lollar recommended involved putting a bat in a

refrigerator to induce torpor and then placing the bat in the freezer. Cummins

posted online that by the time Lollar published her manual, experts had known

for decades that the method she recommended was inhumane. Cummins made

a number of statements on this subject, all suggesting that Lollar is incompetent,

that she is not knowledgeable about the care of bats, and that her ignorance led

her to use and recommend methods of care that were cruel. Dr. Messner and

Lollar testified that while today the procedure is not recommended except in

certain situations, at the time the book was written, the method Lollar

recommended was not considered inhumane. And Lollar clarified that while the

AVMA finds rapid freezing of conscious animals to be inhumane, that was not the

method she had previously recommended, and the method that she had

recommended was one that, at the time, had been used by researchers for


                                        45
years. Cummins introduced no evidence that contradicted Lollar’s evidence on

the matter. Thus, the evidence supports a finding that Cummins’s statements

about Lollar’s recommended euthanasia methods were not true.

      The third statement was a description of an altered photograph, which

Cummins described thusly: “A photo that defendants made of me. They took a

photo of my face and photoshopped semen on my face.” Although the judgment

did not specify that this statement had to be removed, and we did not find in the

record the page on which she contends the statement appeared, she was

ordered in the judgment to remove a similar statement. Cummins contends that

the judgment was improper as to this statement because the statement was not

about Lollar, it was about a friend of Lollar’s who Cummins claimed had posted

the picture. But the statement refers to “defendants,” and thus this statement

does refer to Lollar. Moreover, the other statement about the photograph that

she was ordered to remove refers to “these people,” and it is clear from its

context that Lollar is included in “these people.” Thus, Cummins’s argument that

her statements about this picture do not refer to Lollar and therefore cannot

support defamation is not persuasive.       Cummins makes no other argument

challenging the judgment as to her statements about the photograph. 92

      Other than these three statements, Cummins does not challenge the

judgment as to any statements contained in the three webpages that she was


      92
       See Tex. R. App. P. 38.1(i).


                                       46
ordered to remove. 93 We therefore do not consider whether the evidence was

insufficient to support a finding that the statements contained on those pages

were false or defamed Lollar. We overrule Cummins’s third and fourth issues as

to the webpages she was ordered to remove.

      Allegations of Fraud

      Cummins made a number of statements alleging that Lollar committed

fraud. At one point, she stated that Lollar took money that BWS had received

from the dissolution of another group and used it to buy a vehicle. Cummins

stated, “That money was supposed to go for animals. This is what Lollar does

with money that is given to” BWS. In another statement, Cummins stated that

Lollar bought a bag from Walmart and told Cummins she would use the bag and

then return it. Cummins stated that Lollar “admitted to [Cummins] with an evil

laugh that she does this frequently.”

      These statements are defamatory per se because, since Lollar runs a

nonprofit organization that relies on donations as its primary source of income,

allegations of fraud injure her in her profession. Neither Cummins nor Lollar

produced evidence that specifically discussed whether Lollar used money that

BWS received from the dissolution of another organization to buy a vehicle. We

therefore disagree with Cummins that she proved that the statements were true.

Cummins argues that Lollar admitted this was true in her deposition, but the only


      93
        See id.


                                        47
citation to the record she supplies to support this statement is Cummins’s own

internet postings. Furthermore, although Cummins characterized this statement

as an example of Lollar’s misusing funds, even if the money received was used

to buy a vehicle, nothing in the record indicates that this was an improper use of

the funds.

      As to the second statement, neither Cummins nor Lollar provided

testimony or other evidence about whether Lollar regularly buys merchandise,

uses it, and then returns it. Thus, this statement was not proven either true or

false. But even were we to hold that Lollar had the burden to prove the falsity of

the statement and it was therefore error for the trial court to order Cummins to

remove it, Cummins has not shown how she was harmed, particularly when,

even without this statement, the evidence is sufficient to support the judgment on

Lollar’s defamation claim.

      Furthermore, the point of the statements—that Lollar uses donations

fraudulently and engages in unethical behavior—was something that both sides

briefly presented testimony on.   Cummins testified that she told the IRS that

Lollar was using BWS as her own personal piggy bank and was paying personal

expenses out of the nonprofit. She acknowledged that she had posted online

that Lollar was committing fraud on the BWS donors and that she knew that she

was accusing Lollar of a crime when she said that.

      Cummins also acknowledged that she had posted online an accusation

that Lollar might be collecting welfare illegally.   After seeing a police report


                                       48
stating that Lollar had called the police for a “welfare check,” Cummins stated

online that Lollar owned property, and so if Lollar was receiving welfare, she was

doing so illegally. Cummins stated that she thought the report—which included a

note that said, “Unable to locate. Building locked”—indicated that Lollar had lost

a welfare payment check and called the police to help her find it.

      Cummins explained that she “believed [the statement] to be true” when

she said it, that she posted it because she wanted to show what type of person

Lollar is, that she said it was only illegal “if” Lollar was collecting welfare, and that

she took the post down a few hours later when someone online pointed out that

the report probably meant that Lollar had asked the police to check on

someone’s welfare.

      Lollar testified that she was not paying her personal expenses out of the

nonprofit corporation and that it was not true that she had committed fraud on her

donors. She also stated that she had never committed welfare fraud and had

never been on welfare. The trial court as the fact finder could believe Lollar and

disbelieve Cummins, 94 and, accordingly, Lollar provided sufficient evidence that

Cummins’s statements that Lollar commits fraud on her donors, uses BWS funds

for her personal expenses, and was committing welfare fraud were false.




      94
       See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986) (stating
that when faced with conflicting evidence, the factfinder can believe one witness
and disbelieve others).


                                           49
      Allegations that Lollar Violated a Law, Rule, Regulation, or Standards

      Cummins made numerous statements alleging or implying that Lollar

violated a law, rule, standard, or regulation.       In several of the statements

Cummins was ordered to remove, she stated that Lollar had been found guilty of

illegally breeding bats in violation of BWS’s wildlife permit.     Lollar testified,

however, that she does not intentionally breed or intentionally allow breeding of

the bats in the captive colonies at BWS. BWS neuters the fruit bats as soon as

they come of age, but nevertheless, breeding does occasionally take place

accidentally because “[y]ou can’t monitor exactly when they’re ready to be

neutered.” Lollar also stated that she does not have a permit for the fruit bat

captive colony because none is required. Thus, if BWS had been breeding fruit

bats, it would not have been in violation of a permit.

      Lollar acknowledged that BWS’s permit for its insectivorous colony

prohibits “propagating” bats, but Lollar also testified that accidental breeding is

not considered a violation of the permit.       She stated that she had allowed

breeding in the colony for a study done with a bat conservation organization but

had done so with the knowledge of the Texas Parks and Wildlife Department.

      Lollar further testified that game wardens from the Texas Parks and

Wildlife Department had inspected the facility and found no violations from

accidental breeding.    She stated that BWS is periodically inspected by the

agency and that BWS has always passed those inspections, it has never been




                                         50
reprimanded by the agency, and its permit has never been suspended or

revoked.

      Lollar introduced into evidence a copy of an email exchange that Cummins

had had with a staff attorney at Texas Parks and Wildlife, who informed

Cummins that the agency had found no violations by BWS. In that email, the

attorney stated,

              This is to advise you that TPWD will not be responding to any
      further allegations from you concerning Amanda Lollar’s facility.
      Representatives of the TPWD Law Enforcement Division visited that
      facility earlier this year and found no violations of the Texas wildlife
      laws. In light of this information and your baseless claim that
      someone at TPWD is libeling and defaming you, we consider the
      matter closed.

Lollar thus produced evidence that she is not breeding the bats in the BWS

captive colonies in violation of BWS’s permit and that she has not been found

guilty of violating the permit.

      Lollar testified that Cummins’s statements were damaging because if the

bat conservation community believed that she had been found to be illegally

breeding bats, “[n]o one would want to work with [her] anymore.”            But her

testimony explaining the damaging nature of the statements was unnecessary

because the statements are defamatory per se.             They accuse Lollar of

intentionally violating the permit under which BWS is allowed to keep one of its

captive colonies, and they therefore damage her in her profession.

      Cummins did not produce any proof that Lollar had been found guilty of

causing BWS to violate its permit or that Lollar was incorrect in her


                                        51
understanding that accidental breeding is not a violation of the permit. Under the

applicable standard of review, this evidence is sufficient to support the trial

court’s finding that Cummins’s statements about Lollar’s breeding bats and

thereby violating BWS’s permit were false.

         Cummins was also ordered to remove statements that BWS had been

forced by the health department to leave the city because of all the complaints to

the city and the health department, and that the city had had to gut the building

BWS had been in. 95 These statements are defamatory per se because they

injure Lollar in her profession by implying that BWS’s premises, where it houses

captive bat colonies and out of which it runs its operation (and where it performs

certain emergency treatment on bats), was so ill-kept that it rendered the building

it was in unfit for habitation. 96

         Lollar testified that there was no truth to these statements. Lollar sold the

bottom half of a building she owned, and unneeded items had been stored in that

part of the building, so she contacted a local church to come pick up those items.

The new owner moved those boxes to the sidewalk for the church to pick up from

there.        Lollar stated that the police had been called by someone who was

unhappy that the boxes were out on the sidewalk. Lollar stated that the police


         95
        Cummins did not clarify whether she meant the City of Mineral Wells’s
health department, the Texas Department of State Health Services, or some
other government entity.
         96
          See Hancock, 400 S.W.3d at 66–67.


                                          52
mistakenly wrote up that the building was being gutted. The police report was

not included in the record, but Lollar testified that there was no truth to

Cummins’s statement that BWS was evicted from the building or asked to leave

the city.

       Lollar’s testimony is evidence that the police report stated the building was

being gutted. The defamatory nature of Cummins’s statement arose, however,

not from her publishing the contents of the report—that the building was being

gutted—but from her embellishment of the report. She stated that the health

department forced Lollar and BWS out of the building and that the building was in

such poor condition that it had to be gutted and cleaned. Lollar’s testimony was

evidence that Cummins’s statements to that effect were false, and Cummins

provided no evidence to the contrary.

       Cummins made various statements about Lollar that related to rabies. She

stated that Lollar was breaking the law by illegally obtaining human and animal

rabies vaccinations and that Lollar had told her that the place where she buys her

rabies vaccine thinks she is a doctor. She stated that Lollar exposed interns to

rabies by not checking their vaccination cards to ensure that they had been

vaccinated against rabies. And she stated that Lollar handled rabid bats with her

bare hands, implying that Lollar was not knowledgeable about how to handle

bats. These statements are defamatory per se because they injure Lollar in her

profession, and at least one accuses Lollar of a crime.




                                        53
      To prove the truth of these statements, Cummins relied primarily on her

own testimony. She stated that while at BWS, Lollar told her to give rabies

vaccinations to bats.    Cummins stated that only veterinarians can administer

rabies vaccinations to bats.       Cummins testified that she reported Lollar to

authorities for giving vaccinations to bats. And she reported Lollar for having the

human rabies vaccine because only a doctor, nurse, veterinarian, or pharmacist

may have it. She further stated that Lollar told her that she buys the vaccine

from a company that thinks she is a doctor.

      Cummins also testified that while she was there, Lollar held a possibly

rabid bat in her bare hands. She testified that she had always been told never to

touch a bat with bare hands, something “all the bat experts know,” yet Lollar told

her not to wear gloves when handling bats. She stated that Lollar told her to hold

in her bare hands a bat that Lollar said was possibly rabid. Cummins testified

that neither Lollar nor anyone else asked for proof that she had been vaccinated

against rabies before beginning her internship.

      Kay Singleton testified that Lollar did not tell her to give rabies vaccinations

to bats. She also testified that although she had proof of pre-exposure rabies

vaccination, Lollar did not ask to see it.

      Lollar stated that she buys the human rabies vaccination but not the animal

rabies vaccine. She used to buy the animal rabies vaccine when it was legal for

anyone to do so, but at some point in the 1990s, the law changed. Lollar stated

that she is not violating the law by buying the human rabies vaccine. She buys it


                                             54
from Novartis, Novartis knows she is not a doctor, and she works with a

veterinarian to legally obtain the vaccine.

      Lollar explained that BWS works with a nurse practitioner at a doctor’s

office who accepts people from BWS on a walk-in basis and who administers the

vaccine if needed.     She stated that despite the implication from Cummins’s

posting that Lollar personally administers rabies vaccinations to people, she does

not. Lollar will give the vaccine to interns to take to a nurse for administering it,

but she does not administer vaccines herself.

      Regarding holding rabid bats with her bare hands, Lollar testified that while

Cummins was there, she held in her bare hands a bat pup that was displaying

neurological symptoms that could be the result of either pesticide poisoning or

rabies, and that she was about to euthanize the bat because “[t]here is no way to

save an animal that has those type of symptoms.” She explained that bat pups

do not have teeth that can break the skin, so “any researcher might” hold such a

pup in his or her bare hands. According to Lollar, “[i]t’s done all the time” by

researchers, biologists, and other professionals. Lollar testified that Cummins

made the statements about holding rabid bats in her bare hands to make it look

like Lollar did not know what she was doing, how “dumb [she] must be to be

holding a rabid bat in [her] bare hand.”

      Regarding proof of rabies vaccinations, Lollar testified that someone else

with BWS coordinated the internships the year that Cummins came. That person

was in charge of checking for proof of rabies vaccinations, and Lollar relied on


                                           55
that person’s report about whether the interns were vaccinated. Lollar stated that

no one can attend a BWS internship who has not been vaccinated.

      Lollar further testified that because of Cummins’s allegations, the Centers

for Disease Control called every intern who had been at BWS in the previous

year to talk to them about their experience and about BWS protocols. The only

change to BWS protocols that the CDC recommended was that instead of

recommending that interns wear gloves when working with certain species, BWS

should make it a requirement.

      Dorothy Hyatt, vice president of BWS, testified that she had never seen

Lollar administer a rabies vaccine to a person.         Kennedy testified that she

received a rabies booster shot while on her last day at BWS, but it was

administered to her at a doctor’s office, not at BWS.             Nobody at BWS

administered any type of shot to her.         Lollar testified that she provided the

vaccine to Kennedy but did not administer it to her—she drove Kennedy to the

doctor’s office where the nurse practitioner administered it.

      Kennedy stated that she was required to show proof of pre-exposure

rabies vaccination shots before beginning her internship. And Kennedy testified

that she was encouraged to wear gloves while at BWS.              We hold that the

evidence was sufficient to support the trial court’s judgment as to statements

relating to Lollar’s violations of rules, regulations, standards, and laws, and we

overrule Cummins’s third and fourth issues as to these statements.




                                         56
      Also under these issues, Cummins argues that she was not given a copy

of the specific statements that Lollar and BWS alleged to be defamatory until

after the trial had concluded, and she could not defend the statements without

knowing what they were before trial. Lollar’s petition stated that Cummins had

posted and was continuing to post defamatory statements about Lollar online. If

Lollar’s petition did not provide enough specificity for Cummins to know which

statements she would need to defend, Cummins could have specially excepted

to Lollar’s petition. 97 No such special exceptions appear in the appellate record.

      Cummins also challenges the judgment against her based on statements

in exhibit 18, which she contends were made by people other than her. And she

complains that the exhibits containing the defamatory statements were never

authenticated. Cummins did not object to a lack of authentication as to exhibit

18. 98 And, as she acknowledges, none of the statements she was ordered to

remove were in exhibit 18.

      Cummins did object that exhibit 17 had not been authenticated, and the

trial court overruled her objections. But she does not argue, nor do we discern

from our review of the record, how she was harmed by any lack of authentication

of the exhibits containing the statements, particularly when she admitted at trial




      97
        See Tex. R. Civ. P. 90, 91.
      98
        See Tex. R. App. P. 33.1.


                                        57
to making the statements in the exhibits that we have held were defamatory per

se. 99

         Finally, Cummins complains about being ordered to remove the episiotomy

video. She asserts that she introduced evidence that the video is the truth and

that Lollar did not produce evidence that the contents of the video are false

because Lollar admits that it is a video of her performing an episiotomy. As we

stated above, Lollar did not contend that the video does not depict her performing

an episiotomy. She complained that the video’s editing and the added captions

were defamatory. And, as stated above, Lollar proved that the video as edited by

Cummins was false. We overrule the remainder of Cummins’s third and fourth

issues.

                             3. Defamation Damages

         In her fifth issue, Cummins challenges the damages awarded to Lollar for

defamation. Regarding the compensatory damages award, her argument under

this issue relates only to economic damages, and she includes no argument

relating to any of the other categories of damages that Lollar pled and introduced

evidence on. We overrule her issue as to the compensatory damages award. 100



         99
          See Tex. R. App. P. 44.1(a).
         100
        See Britton v. Tex. Dep’t of Criminal Justice, 95 S.W.3d 676, 681 (Tex.
App.—Houston [1st Dist.] 2002, no pet.) (stating that “[g]enerally speaking, an
appellant must attack all independent bases or grounds that fully support a
complained-of ruling or judgment”); see also Tex. R. Civ. P. 38.1(i).


                                         58
       As for exemplary damages, Cummins argues that Lollar produced no

evidence of malice and that Cummins’s net worth does not support the amount of

the award. Cummins did not timely raise these complaints in the trial court, but

because this is an appeal from a bench trial and these complaints challenge the

sufficiency of the evidence to support the damages award, she may raise them

for the first time on appeal. 101

       Chapter 41 of the civil practice and remedies code provides that generally,

to be entitled to exemplary damages, a plaintiff must show fraud, malice, or gross

negligence by clear and convincing evidence. 102 “Malice” in this context means

“a specific intent by the defendant to cause substantial injury or harm to the

claimant.” 103 Additionally, in a defamation action, the Texas Supreme Court has

stated that “recovery of exemplary damages are appropriately within the

guarantees of the First Amendment if the plaintiff proves by clear and convincing

evidence that the defendant published the defamatory statement with actual

malice.” 104


       101
         See Tex. R. App. P. 33.1(d).
       102
         Tex. Civ. Prac. & Rem. Code Ann. §§ 41.002(b), 41.003(a) (West 2015).
       103
         Id. § 41.001(7).
       104
         Hancock, 400 S.W.3d at 66. After this case was tried, the legislature
enacted a statute providing that a defamation plaintiff may not recover exemplary
damages without first serving a request for a correction, clarification, or
retraction. See Tex. Civ. Prac. & Rem. Code Ann. § 73.055(c) (West Supp.
2014).


                                        59
       Clear and convincing evidence is that measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established. 105 This intermediate standard of proof

falls between the preponderance standard of proof applicable to most civil

proceedings and the reasonable doubt standard of proof applicable to most

criminal proceedings. 106 While the proof must be of a heavier weight than merely

the greater weight of the credible evidence, there is no requirement that the

evidence be unequivocal or undisputed. 107 In evaluating the legal sufficiency of

the evidence under the clear and convincing standard of proof, we must

determine whether the evidence is such that a factfinder could reasonably form a

firm belief or conviction that its finding was true. 108

       In determining what amount of exemplary damages to award, the factfinder

must consider any evidence relating to (1) the nature of the wrong; (2) the

character of the conduct involved; (3) the degree of the wrongdoer’s culpability;

(4) the situation and sensibilities of the parties concerned; (5) the extent to which


       105
        Tex. Civ. Prac. & Rem. Code Ann. § 41.001(2); Tex. Fam. Code Ann. §
101.007 (West 2014); U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex.
2012); State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010).
       106
        In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); State v. Addington, 588
S.W.2d 569, 570 (Tex. 1979).
       107
         Addington, 588 S.W.2d at 570.
       108
        K.E.W., 315 S.W.3d at 20; Columbia Med. Ctr. of Las Colinas, Inc. v.
Hogue, 271 S.W.3d 238, 248 (Tex. 2008), cert. denied, 290 S.W.3d 873 (2009).


                                            60
such conduct offends a public sense of justice and propriety; and (6) the

defendant’s net worth. 109 In our review of an exemplary damages award, we

must state our reasons for upholding or disturbing the award, and we must

“address the evidence or lack of evidence with specificity, as it relates to the

liability for or amount of exemplary damages, in light of the requirements of”

chapter 41. 110

      The evidence at trial did not show that Cummins had a negative net worth.

After the judgment was rendered, Cummins filed an affidavit of indigency, and

after a contest, the trial court found that she was indigent. But that finding, made

after the trial court had rendered judgment and Cummins had filed her notice of

appeal, was irrelevant to the trial court’s earlier determination of the exemplary

damages award.       Furthermore, the other factors that a court considers in

awarding exemplary damages weigh in favor of the award.               As we have

explained, Cummins posted a flood of statements about Lollar accusing her of all

manner of serious wrongdoings, including crimes, and she published her

statements to as wide of an audience as she could, including to numerous law

enforcement agencies.       The statements were designed to ruin Lollar’s

professional and personal reputation locally and nationally.




      109
         Tex. Civ. Prac. & Rem. Code Ann. § 41.011(a) (West 2015).
      110
         Id. § 41.013 (West 2015).


                                        61
       As to Cummins’s argument that Lollar failed to show malice, we disagree.

From our review of the record, 111 Lollar showed by clear and convincing evidence

that Cummins acted with malice as that term is used in chapter 41 and with the

actual malice required under the First Amendment. The evidence supports a

conclusion that Cummins engaged in a persistent, calculated attack on Lollar

with the intention to ruin both Lollar’s life’s work and her credibility and standing

in the animal rehabilitation community. Cummins posted innumerable derogatory

statements about Lollar impugning her honesty and her competency, and she

repeatedly and relentlessly reported Lollar to multiple government agencies. The

comments she made about Lollar leave no doubt that she had a specific intent to

cause substantial injury or harm to Lollar.

      Clear and convincing evidence also supports a finding that Cummins

published statements on the internet with actual malice.            For example, with

regard to Cummins’s statements about Lollar’s dogs, the evidence supported a

finding that Cummins was not telling the truth. The trial court’s determination that

Cummins was not credible was reasonable, and, consequently, we are required

to   ignore   her   testimony   in   reviewing   the   trial   court’s   actual   malice


       111
        See New York Times, 376 U.S. at 285, 84 S. Ct. at 729 (considering the
proof presented of actual malice and stating that the court “must ‘make an
independent examination of the whole record,’ so as to assure ourselves that the
judgment does not constitute a forbidden intrusion on the field of free
expression”) (citations omitted); see also New Times, Inc., 146 S.W.3d at 165 (“a
personal vendetta demonstrated by a history of false allegations may provide
some evidence of malice, free-floating ill will does not”).


                                         62
                 112
determination.         And if the trial court believed that Lollar, Kennedy,

Dr. Messner, and Dr. Jarrett were telling the truth—and it is clear that the court

did believe that—that determination was reasonable. Their testimony supports

the trial court’s determination that Cummins published fabricated statements

about Lollar’s care of her dogs, and, thus, that the statements were made with

actual malice.

      Regarding the episiotomy video, Cummins offered only her own testimony

to support her version. Lollar, Dr. Jarrett, and Dr. Messner all agreed that what

Cummins said occurred did not happen. Cummins admitted that she had never

performed an episiotomy on a bat before, and therefore she had no basis for

asserting as fact what was at best speculation and at worst total fabrication. But

she posted her version as fact, not speculation, and then she spread her version

as far and wide as she possibly could.

      The evidence further supports a conclusion that Cummins told as many

people as she could that Lollar was illegally obtaining and administering

Isoflurane and rabies vaccines and that she made these representations as facts,

despite the fact that they were based only on assumptions she had made based

on limited information. As with Cummins’s statements about Lollar’s dogs, the

trial court’s determination that Cummins was not credible was a reasonable one,

and therefore we are required to ignore her testimony in our review. And the trial


      112
        See Bentley, 94 S.W.3d at 597–99.


                                         63
court’s determination that Lollar, Dr. Jarrett, and Dr. Messner were credible was

a reasonable one.        Based on these credibility determinations, clear and

convincing evidence supports the trial court’s finding that Cummins made

statements on these matters with actual malice.             We hold that the record

supports a finding of malice—both of the malice required for an award of

exemplary damages under Texas law and of actual malice as required for an

award of exemplary damages in defamation actions. 113

      And finally under this issue, Cummins argues that the exemplary damages

award was excessive. She includes no argument about why the damages were

excessive other than to say that exemplary damages must be reasonably

proportional to actual damages. She does not include any argument or citations

to authority about why the damages were not proportional in this case. 114

Further, she did not timely raise this complaint in the trial court. 115

      And although the civil practice and remedies code’s cap on exemplary

damages 116 applied to this case, Cummins neither timely raised this issue in the


      113
         See Tex. Civ. Prac. & Rem. Code Ann. § 41.001(7).
      114
         See Tex. R. App. P. 38.1(i).
      115
         See Flores v. Millennium Interests, Ltd., 185 S.W.3d 427, 436 (Tex.
2005) (stating that proportionality requirements for exemplary damage awards
are based on the constitution); In re D.T.M., 932 S.W.2d 647, 652 (Tex. App.—
Fort Worth 1996, no writ) (“Even constitutional arguments are waived at the
appellate level if issues were not before the trial court.”).
      116
         See Tex. Civ. Prac. & Rem. Code Ann. § 41.008(b) (West 2015).


                                           64
trial court nor argued on appeal that the trial court did not apply the cap or did not

apply it correctly. This court has held that the statutory cap is an affirmative

defense that must be pled and proved. 117 An argument that the trial court failed

to properly apply the cap is therefore not a complaint about the sufficiency of the

evidence to support the award. 118      Because Cummins neither preserved any

complaint about the cap in the trial court nor raised the issue on appeal, we may

not consider whether the trial court failed to properly apply the cap. We overrule

Cummins’s fifth issue as to the exemplary damages award.

      Cummins included one other argument relating to the part of the relief

awarded to Lollar on her defamation claim. In one sentence in the summary of

her argument, Cummins challenges the permanent injunction included in the

judgment. She argues, with no citation to authority, 119 that “[t]he court’s order is

also overly broad. It contains prior restraint[,] which is unconstitutional.”




      117
         See Davis v. White, No. 02-13-00191-CV, 2014 WL 7387045, at *10
(Tex. App.—Fort Worth Dec. 29, 2014, no pet. h.) (mem. op.) (holding that the
statutory cap on exemplary damages is an affirmative defense that must be pled
and proved at trial).
      118
         See Norra v. Harris Cnty., No. 14-05-01211-CV, 2008 WL 564061, at
*2–3 (Tex. App.—Houston [14th Dist.] Mar. 4, 2008, no pet.) (mem. op.) (holding
that a complaint on appeal from a bench trial that raises a new legal basis or
theory for challenging a damages award that is not a complaint about the
sufficiency of the evidence must be raised in the trial court to preserve the
complaint for appeal).
      119
         See Tex. R. App. P. 38.1(i).


                                          65
      The judgment ordered that “Cummins be permanently enjoined” and

“ORDERED to immediately and permanently remove from the internet”

statements that appeared on specified web pages. To the extent that the trial

court’s order required Cummins to remove the statements that the court ruled

were defamatory, the order is constitutional. 120 But the order is unconstitutional

to the extent that it permanently enjoins Cummins from making similar

statements in the future. 121 Though Cummins can be held responsible for any

defamatory statements she may make about Lollar in the future, the trial court

could not issue an order prohibiting her from making them. Thus, to the extent

that the order may be read to permanently enjoin Cummins from making similar

statements in the future, we sustain Cummins’s challenge to that part of the

judgment. 122 We overrule the remainder of her fifth issue.

                              B. Breach of Contract

      Cummins’s last five issues challenge the judgment for BWS for breach of

contract:

      6. Did Appellees present “more than a scintilla” of evidence that any
      of Appellant’s actions meet all four of the following criteria for breach
      of contract?


      120
            See Kinney, 443 S.W.3d at 93–94.
      121
            See id.
      122
          But see Tex. Const. art. I, § 8 (stating that “[e]very person shall be at
liberty to speak, write or publish his opinions on any subject, being responsible
for the abuse of that privilege” (emphasis added)).


                                         66
            a. The existence of a valid contract;

            b. Performance or tendered performance by the plaintiff;

            c. Breach of the contract by the defendant; and

            d. Damages sustained by the plaintiffs as a result of the
            breach.

      7. Did the trial court err in granting Appelleeʼs [judgment] against
      Appellant for breach of contract?

      8. Were Plaintiffs entitled to attorneysʼ fees?

      9. Were attorneysʼ fees reasonable?

      10. Were Plaintiffs entitled to liquidated damages?       Were they
      reasonable, legal?

      Cummins argues that the award of damages on the breach of contract

claim was erroneous as to both Lollar and BWS, but the contract was with BWS

and not with Lollar, and the trial court found that Cummins should pay only BWS

$10,000 for breach of contract.       And only BWS sought and was awarded

damages for breach of contract.       We therefore overrule as moot Cummins’s

issues challenging the breach of contract claim as to Lollar.

         1. Sufficiency of the Evidence to Show Breach of Contract

      In her sixth issue, Cummins argues that BWS did not present legally

sufficient evidence to support the breach of contract claim. To prove a breach of

contract claim, a plaintiff must show “the existence of a valid contract,

performance or tendered performance by the plaintiff, breach of the contract by




                                         67
the defendant, and damages sustained as a result of the breach.” 123 Cummins

argues that BWS produced no evidence that she breached the contract and

showed no proof of actual or financial damages.

      In its petition, BWS alleged that Cummins breached a provision in the

intern contract that stated, “It is understood that the data, techniques, results, and

anecdotal information provided to Trainee during their internship at BWS is

proprietary and is copyrighted as intellectual property by BWS. Trainee agrees

not to distribute, share, publish, or sell this information without obtaining prior

written permission from BWS.” [Emphasis added.] BWS alleged that Cummins

breached these provisions in that:

             While [Cummins] was on the Bat World Sanctuary’s premises
      she videotaped and photographed Bat World’s techniques, results,
      data[,] and anecdotal information, often without the knowledge of Bat
      World Sanctuary. After leaving the program [Cummins] began
      posting these videotapes and photographs on the internet without
      Bat World Sanctuary’s permission, thereby breaching her contract
      with Bat World Sanctuary. [Cummins] refuses to remove these
      videotapes and photographs from the internet where they remain as
      of the date of the filing of this suit.

             ....

            [Cummins]’s conduct as described above constitutes breach
      of contract for which [BWS] bring[s] this suit. The breach of contract
      was a producing cause of actual damages to [BWS].

      Lollar testified that she believed the contract prohibited Cummins from

sharing without permission any photographs or videos taken at BWS, regardless

      123
        City of The Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 739
(Tex. App.—Fort Worth 2008, pet. dism’d).


                                         68
of whether the photographs disclosed data, techniques, results, or anecdotal

information provided to the intern.    Much of Lollar’s testimony at trial about

Cummins’s publishing of photos and videos related to whether Cummins had

permission to publish them and not on whether they included information covered

by the contract.

      By its language, however, the provision applies only to data, techniques,

results, and anecdotal information given to intern trainees. It does not prohibit a

trainee from publishing photographs or videos that the trainee took at BWS if

those pictures or videos do not fall within the categories protected by the

contract. 124 As acknowledged by Lollar in her testimony, not all of the pictures

taken and posted by Cummins contained proprietary or copyrighted information.

      BWS introduced into evidence various photographs and four videos that

Cummins took during her time at BWS and later posted online. The first video

was of an old Pallid bat. Lollar did not explain what data, techniques, results, or

anecdotal information this video disclosed, and in our review of the video, we

could not determine that any such information was included in it. No one else

testified for BWS on that point.      Accordingly, there was no evidence that

Cummins’s publishing of the video was a breach of the contract.



      124
         See Verhoev v. Progressive Cnty. Mut. Ins. Co., 300 S.W.3d 803, 816
(Tex. App.—Fort Worth 2009, no pet.) (stating that the plain language of a
contract must be given effect when the parties’ intent can be discerned from that
language).


                                        69
      The second video was of orphan red bats hanging from a bat hut. Lollar

testified that the bat hut was a BWS design, but she did not elaborate on whether

the design was proprietary or in what way the video disclosed protected data,

techniques, results, or anecdotal information. In our review of the video, we

could not determine what information protected by the contract was included in it.

Thus, BWS did not produce sufficient evidence that this video’s publication by

Cummins violated the contract.

      The third video was the episiotomy video. When the video was played at

trial, it was played without sound. Lollar’s attorney attempted to play the video

again later to include the sound, but he and Lollar talked over the beginning of

the video, and almost immediately after they stopped talking, the DVD player quit

working.

      The copy of the video included with the appellate record does contain

sound, but even with the sound, we cannot say that the video discloses

information protected by the contract.      The video was edited so that only a

portion of the procedure was shown. Of the parts that were shown, at times,

nothing but Lollar’s hand can be seen due to the angle of the camera and the

small size of the bat. Lollar explained very little of what she was doing in the

procedure.   A person watching the video could glean only a hint of Lollar’s

technique for performing episiotomies. From the combination of an incomplete

video, misleading captions, an obscured view of the bat, and a lack of narration

of what was happening, the evidence was not sufficient to show that this video


                                       70
disclosed data, techniques, results, or anecdotal information protected by the

contract.

      The fourth video was of an orphan red bat being held by Cummins. There

was no testimony about what protected data, techniques, results, or anecdotal

information, if any, was disclosed in the video, and we could discern none from

our viewing of it. Accordingly, BWS produced no legally sufficient evidence of

how the publication of this video breached the contract.

      As for the photographs that were published, there was no testimony about

what data, techniques, results, or anecdotal information, if any, was disclosed in

their publication. Many of the pictures appear to be just pictures of bats, and

some are of Lollar’s dogs. From our review of the photographs produced by

BWS at trial, we cannot determine what protected information, if any, was

included in them.

      Cummins produced evidence in the form of an email exchange that for

some of the photographs she published on Facebook, she informed Lollar almost

as soon as she had published them, and Lollar replied, “Thank you Mary!!”

When Cummins asked at trial if Lollar had ever asked her to remove anything

that Cummins had published, Lollar stated, “I have never sent any

communication to you whatsoever after you left our internship.” Lollar produced

no evidence refuting Cummins’s evidence that she had assented to the

publishing of some of the photographs on Facebook. Cummins thus produced

uncontroverted evidence that Lollar assented to the publication of those


                                        71
photographs and did not revoke her assent to the publication of those

photographs before filing suit.

      Regardless of whether Cummins’s publication of videos and photographs

taken at BWS may have violated some other right of BWS, the evidence at trial

was not legally sufficient to show a breach of the contract’s prohibition of the

disclosure of data, techniques, results, and anecdotal information Cummins

learned while at BWS.

      The only other provision that BWS arguably alleged that Cummins

breached was a provision that, if breached, provided for liquidated damages. In

closing arguments, Lollar and BWS’s attorney stated, “Your Honor, we request

that [BWS] be awarded $10,000 in liquidated damages pursuant to the contract

that was signed by Ms. Cummins.” That part of the contract provided,

             In the event that Trainee at any time fails to follow, to the
      satisfaction of BWS, each and every BWS guideline and procedure
      when caring for, treating, or housing bats, then Trainee’s Certificate
      of Completion of Bat World’s training program shall be automatically
      revoked without notice or hearing and Trainee may no longer
      publish, advertise, or communicate to any person the fact that he or
      she was trained by BWS or was certified by BWS. BWS shall have
      sole discretion to determine whether or not the Certificate of
      Completion should be revoked. In the event that Trainee is notified
      in writing that Trainee’s Certificate of Completion has been revoked
      by BWS and Trainee thereafter publishes, advertises or
      communicates to any person the fact that Trainee was trained by
      BWS or was certified by BWS, then Trainee agrees to pay BWS
      liquidated damages in the amount of $10,000, and all attorney’s fees
      incurred by BWS in enforcing this contract. [Emphasis added.]

There is no evidence that BWS issued Cummins a certificate of completion that it

subsequently revoked in writing and that Cummins then published, advertised, or


                                       72
communicated the fact that she was trained or certified by BWS. Accordingly, no

evidence supports a finding that Cummins breached this provision.

      Furthermore, BWS did not produce sufficient evidence of damages. At

trial, Lollar and her attorney had this exchange on the subject of damages:

            Q. [I]f somebody was to take photographs of Bat World and
      then publish them without your permission, would there be any way
      for you to put an exact dollar value on the photographs that they
      published without your permission?

              A. [I] could only base it on—on some of the information
      that . . . might be shared would be valuable. We—I’ve been hired as
      a consultant . . . in different capacities, and—and if my knowledge is
      freely shared along those lines, then . . . it would decrease the
      amount of value that my consultation would have.

            Q. How much have you charged in the past for consultation?

            A. $15,000.

            Q. Okay. And is $10,000 your estimate of the approximate
      amount that you would charge someone to randomly show these
      videos or pictures?

            A. Yes. Yes.

            Q. So, in your mind, the $10,000 has some bearing to the
      actual damages that you would suffer if photographs were published
      randomly without your approval?

            A. Yes.

      Thus, Lollar’s estimate of damages to BWS was based on the extent that

the pictures or videos disclosed information for which she might otherwise be

hired to provide in paid consultations. Assuming that Lollar was testifying about

what she charges for consultations on behalf of BWS, her testimony was that she

has been hired as a consultant “in different capacities,” but she did not explain


                                       73
how the videos or photographs disclosed information for which she provides

consulting services. The only video that seems to arguably disclose information

that might be covered by the contract was the video of the episiotomy. Thus, the

evidence did not support a finding that Cummins’s publication of the other videos

and the photographs caused Lollar to suffer damages. And even assuming the

record supported a finding that Lollar offers consultations on episiotomies, we

have already held that the video in the record did not disclose proprietary

information, and thus BWS did not prove that Cummins’s publication of it caused

damages arising from a breach of the contract.

          The evidence provided by BWS to support damages is not sufficient to

show that it suffered $10,000 in damages from a breach by Cummins of the

intern contract. We sustain Cummins’s sixth issue.

          Cummins’s seventh issue asks whether the trial court erred by granting

Lollar and BWS judgment against her for breach of contract. Cummins does not

include any new arguments under this issue, and we therefore need not address

it. 125

                     2. Attorney’s Fees for Breach of Contract

          Cummins’s eighth and ninth issues challenge whether BWS was entitled to

attorney’s fees, and if it was, whether the fees awarded were reasonable. She


          125
       See Tex. R. App. P. 38.1(i); Gray v. Nash, 259 S.W.3d 286, 294 (Tex.
App.—Fort Worth 2008, pet. denied) (determining that issues were waived
because of inadequate briefing).


                                         74
argues that attorney’s fees should not have been awarded because there was no

breach of contract. BWS’s petition requested an award of attorney’s fees under

section 38.001 of the civil practice and remedies code. 126 BWS did not plead any

other basis for attorney’s fees. Because we have held that the judgment for

breach of contract was improper, we must also hold that the award of attorney’s

fees based on the contract was improper. 127

                            3. Liquidated Damages

      Cummins’s tenth and final issue challenges the trial court’s award of

liquidated damages for breach of contract.        We have already held that the

evidence was insufficient to show that Cummins breached the contract provision

triggering liquidated damages and that the trial court therefore should not have

awarded liquidated damages to BWS.             Accordingly, we need not address

Cummins’s tenth issue.

                                IV. Conclusion

      We affirm the trial court’s judgment in part and reverse it in part. Having

overruled Cummins’s first, second, third, fourth, and seventh issues, and having

overruled her fifth issue in part, we affirm the trial court’s judgment as to the

award of actual damages and exemplary damages for Lollar. We also affirm that

      126
        Tex. Civ. Prac. & Rem Code Ann. § 38.001 (West 2015).
      127
          See MBM Fin. Corp., 292 S.W.3d at 666 (holding that because the court
rendered a take-nothing judgment on the plaintiff’s breach of contract claim, the
party could not recover attorney’s fees based on a breach of contract claim under
civil practice and remedies code chapter 38).


                                       75
portion of the trial court’s judgment ordering Cummins to remove from the

internet the web pages and defamatory statements specified in the judgment.

Having sustained her fifth issue in part, we reverse that part of the trial court’s

judgment permanently enjoining Cummins from making similar statements in the

future.

      Having sustained Cummins’s sixth, eighth, and ninth issues, we reverse

that portion of the trial court’s judgment awarding damages to BWS for breach of

contract and attorney’s fees and render judgment that BWS take nothing on its

claims.



                                                   PER CURIAM


PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

MEIER, J., concurs without opinion.

DELIVERED: April 9, 2015




                                        76
