Jerry Scarbrough, Denise Steele, and Melissa Victoria Deaton v. Helen Purser Sue E. Purser A/K/A Sue E. Van Zanten Gary W. Purser, Jr. JoAnn M. Purser And Elizabeth H. Tipton

• Court: Court of Appeals of Texas
• Decided: December 30, 2016
• Docket: 03-13-00025-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-13-00025-CV

Jerry Scarbrough, Denise Steele, and Melissa Victoria Deaton, Appellants

v.

Helen Purser; Sue E. Purser a/k/a Sue E. Van Zanten; Gary W. Purser, Jr.; JoAnn M. Purser; and Elizabeth H. Tipton, Appellees

FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT NO. 236,117-B, HONORABLE ALAN MAYFIELD, JUDGE PRESIDING

MEMORANDUM OPINION

Attorney Jerry Scarbrough and his former clients, Melissa Victoria Deaton1

and Denise Steele,2 appeal from a jury verdict in favor of Helen Purser, Sue E. Purser a/k/a

Sue E. Van Zanten, Gary W. Purser Jr., JoAnn M. Purser, and Elizabeth H. Tipton (the Purser

Family) on claims of fraud, defamation, and defamation per se. The Purser Family’s suit asserted

defamation and fraud claims arising from allegations that Deaton and Steele initiated an

inappropriate relationship with family patriarch Gary W. Purser, Sr.3 and financially exploited him

1 Appellants’ counsel filed a suggestion of death for Deaton, stating a presumption that Deaton would want this appeal to continue. 2 Counsel for appellants stated at oral argument that Steele’s last name has changed to Pierce. For clarity, we will refer to this appellant by her former last name, consistent with the evidence, jury charge, and judgment in this case. 3 Purser Sr. was Helen’s husband, the father of Elizabeth, Gary Jr., and Sue, and the father-in-law of JoAnn, who is married to Gary Jr. while he suffered from dementia. The suit alleged that Scarbrough, the attorney who represented

Deaton and Steele, conspired with his clients and also that he defamed the Purser Family by accusing

them of abusing and murdering Purser Sr. The jury’s final judgment held Scarbrough, Steele, and

Deaton jointly and severally liable for defamation and fraud based on the jury’s findings that they

acted in concert or in conspiracy. The jury also found that appellants acted with malice or gross

negligence and awarded exemplary damages of $13.5 million. Additionally, the court ordered

sanctions totaling $54,261.50 against Scarbrough and $5,000 against Deaton for discovery abuse.

In a voluminous and rambling appeal, Scarbrough raises 26 issues and Steele and

Deaton raise 14 overlapping ones, primarily challenging the sufficiency of the evidence supporting

the jury’s findings.4 They contend that the district court lacked jurisdiction over the Purser Family’s

claims and that the court should not have given a spoliation instruction. They also contend that there

was no evidence to support a variety of the jury’s findings and no clear-and-convincing evidence of

appellants’ actual malice or gross negligence.

Scarbrough separately contends that the court erred by denying his requested question

and instruction on his claim that, as an attorney, he should have qualified immunity, and that there

was no clear-and-convincing evidence he made any statement that was perceived as tending to affect

a person injuriously or charging a person with illegal or immoral conduct. Scarbrough also contends

that there was no basis for the discovery sanctions awards against him, that the Purser Family lacked

standing to seek sanctions, that the exemplary damage and sanctions awards against him are

4 Steele and Deaton’s brief identifies fifteen issues but skips number thirteen, lists the “fourth issue” twice, and wholly omits their fraud-by-failure-to-disclose issue.

2 excessive and unconstitutional, that the court abused its discretion by denying his requested Rule 13

sanctions, and that he was entitled to “immunity from prosecution” for his report about Purser, Sr.

to Adult Protective Services.

For the reasons that follow, we will reverse the portions of the judgment awarding

compensatory damages to the Purser Family on their defamation and fraud claims against

Scarbrough, Steele, and Deaton, with the exception of the unchallenged awards of past mental

anguish damages for defamation; reverse the exemplary damages awards against Steele and Deaton;

modify the exemplary damages award against Scarbrough by applying the statutory cap; and affirm

the district court’s orders imposing sanctions against Scarbrough and Deaton.

BACKGROUND5

Purser Sr. meets Steele, Deaton, and Olvera

Gary Purser Sr., a successful land developer and owner of several construction

companies in Killeen, was in his late 70s and alleged to be in the early stages of Alzheimer’s disease

when he met then 29-year old Denise Steele at the Red Lobster where she worked. Steele introduced

Purser Sr. to her live-in boyfriend, Clayton Olvera, and to her friend, Melissa Deaton. Purser Sr.

eventually hired Olvera to manage a business called Freytag Irrigation. According to Olvera,

Purser Sr. and Steele began a romantic relationship and met weekly at a hotel, then later at Deaton’s

home. Olvera testified that over time, Purser Sr. gave Steele jewelry, weekly payments of $500,

$5,000 every other week for a car, money for attending real-estate classes and starting a sports bar,

5 The background is summarized from evidence in the record of this appeal.

3 and money to pay for cosmetic surgery. Steele admitted that Purser Sr. gave her money, but she

denied that he paid for any medical procedures. She testified that Purser Sr. told her he had made

several men into millionaires and he wanted “to make [her] the first woman millionaire.” Steele and

Deaton were recorded discussing a property-development scheme with Purser Sr. in which the

women would split $2.5 million each (the “secret recording”). In that recording they also discussed

having Purser Sr.’s children and a fantasy of traveling to Las Vegas together. During that same

discussion they told Purser Sr. that when he died, he should not do as some people who leave all

their money to a dog because he had Steele and Deaton. Steele and Olvera later broke up, and

Olvera was eventually fired from Freytag. During this time, Purser Sr.’s family alleges that his

deteriorating health caused memory loss, disinhibition, hypersexuality, and behavior that was out

of character for him.

Olvera sues Purser Sr. and Purser Family files third-party claims

In a demand letter to the Purser Family after his firing from Freytag, Olvera

threatened to file a lawsuit—and in it revealed that Purser Sr., who was highly regarded in the

community, had carried on a secret affair with Steele and lavished money and gifts on her—unless

the family paid Olvera hundreds of thousands of dollars. Deciding to investigate the truth of

Olvera’s allegations, the Purser Family monitored Purser Sr.’s location through his phone and

discovered his numerous meetings with Steele at Deaton’s house. Before one such meeting,

Purser Sr. told his family that he was going to Killeen, but his phone showed that he was on IH-35

driving to Temple. Tracking his travel, Purser Sr.’s daughter-in-law JoAnn arrived at Deaton’s

house and called her husband Purser Jr. and her sister-in-law Elizabeth, who both joined her there.

4 They heard Purser Sr.’s voice outside the house, and they confronted Steele and Deaton in the

backyard. JoAnn videotaped the confrontation. When Steele told JoAnn that she and Purser Sr.

were “just friends,” JoAnn became upset and cursed at her, believing that the “two women were

taking advantage of an old man.” Deaton called 911, reporting that people were attacking her.

JoAnn also called 911 to clarify that Deaton was not being attacked, that Steele and Deaton “were

taking advantage of an older man with a problem” and that his family was trying to get him away

from them.

About two months later, after the family told Purser Sr. that they had put a GPS

device on his vehicle, Helen Purser called JoAnn to report that money was missing from their safe,

that Purser Sr. had driven away, and that she wanted to know where Deaton lived. JoAnn testified

that she did not want her 75-year-old mother-in-law driving to Temple, so she told Helen that she

would follow up on the matter. GPS showed JoAnn that Purser Sr. drove to his business office.

When JoAnn arrived, staff told her that Purser Sr. had borrowed keys to a truck he did not usually

drive. Thinking that he had switched vehicles to avoid the GPS, JoAnn drove to Temple and parked

across the street from Deaton’s house, waiting to confirm whether that was Purser Sr.’s destination.

Purser Sr. arrived in the truck and parked in Deaton’s driveway. JoAnn walked up

to the driver’s side window of the truck where she saw Purser Sr. counting out $100 bills into three

piles on his lap, $9,300 in all, which she presumed he planned to give to Steele or Deaton. After

Purser Sr. refused to exit the truck, JoAnn knocked at Deaton’s door, identified herself, and stated

that Purser Sr. was there with money and she wanted to know what was going on. Deaton did not

answer and JoAnn walked back to the truck, where she did not see the money. Purser Sr. told her

that he had hidden it and she would not find it. JoAnn entered the passenger side of the truck, found

5 the money in an envelope in the glove compartment, and struggled with Purser Sr., telling him that

they needed to go home and sort things out. Eventually, JoAnn took the envelope and got into her

car with Purser Sr. at her window demanding the money. JoAnn had begun to “creep away” in the

car when the police arrived. Deaton had called 911 reporting that JoAnn was dragging Purser Sr.

down the street with her car and probably had weapons. JoAnn testified that no charges were filed

because the first-responding officer’s dash-cam video, reviewed by all three responding officers at

the scene, showed that JoAnn had not dragged Purser Sr.6

Before confirming Purser Sr.’s meetings with Steele and Deaton, the Purser Family

had noticed Purser Sr. doing some unusual things: attempting to sell the same property to two

different buyers, losing his way home from a funeral (while driving through the town in which he

had developed several subdivisions), and giving faulty instructions to employees. His family took

him to a doctor who diagnosed Purser Sr. with early signs of Alzheimer’s, a form of dementia.

Olvera eventually followed through on his litigation threat, filing a breach-of-contract

and tortious-interference suit against Purser Sr., Freytag Irrigation, and the Purser Family Trust. The

Purser Family subsequently filed third-party claims against Steele and Deaton. Lawyer Scarbrough

represented Steele and Deaton in the suit, but he withdrew from that representation after he was also

named a defendant.

6 Deaton made other 911 calls accusing JoAnn of threatening to kill her and assaulting her. Police investigations determined that Deaton’s allegations were false and phone records tended to disprove the alleged death threat.

6 Defamation allegations and discovery sanctions

During the litigation, Purser Sr. developed pneumonia and died at a hospital. The

next day, Scarbrough sent a letter to Jack Crews, one of the lawyers for the Purser Family, requesting

that an autopsy be performed to confirm whether Purser Sr. had dementia.7 Scarbrough also

contacted Dan Carter, the director of the funeral home where Purser Sr.’s arrangements were

underway; Bill Cooke, a justice of the peace in Killeen; the Temple Police Department; and the

Texas Rangers, all to discuss Purser Sr.’s death. In each of these conversations, Scarbrough accused

the Purser Family of murdering Purser Sr. Scarbrough also reported to Adult Protective Services that

the Purser Family abused Purser Sr., and later in open court Scarbrough accused Purser Jr. and

JoAnn Purser of being drug addicts. While JoAnn was running for election as a trustee on the

Killeen Independent School District board, Scarbrough posted to YouTube a video of the backyard

incident at Deaton’s house and audio of the 911 call that JoAnn placed during that incident.

Unknown to the Purser Family, before Purser Sr. died, Steele and Deaton told him

in a recorded conversation that his family was after his money, that he could not trust his family, and

that the family wanted him institutionalized. The women urged him to put his money in a safe in

Deaton’s house and come live with them. Purser Sr. allegedly began to believe what the women told

him and became suspicious of his family.

During discovery, Scarbrough had given a digital recorder that contained the

above-mentioned conversation to Shawn Richeson, his “IT guy,” to enhance clarity by removing

7 Scarbrough acknowledged that when he was serving as counsel for Deaton, he filed a motion for appointment of a guardian ad litem contending that Purser Sr. was a mentally incapacitated person who lacked a guardian (even though Purser Sr. was represented by counsel at the time). Also, in an accidental recording Scarbrough made while carrying a recorder Deaton gave him, Scarbrough told his wife that Purser Sr. had dementia.

7 static and background noise. Richeson connected the recorder’s USB drive to his computer,

downloaded the contents of the recorder, and returned the recorder to Scarbrough. When Richeson

listened to the recording, he was concerned about what he heard and thought he recognized

Purser Sr.’s voice. He told a Purser Family friend, John Fisher, that the recording sounded like a

couple of women trying to take advantage of an old man, and Richeson gave Fisher access to the

audio file through the Internet, allowing Fisher and the Purser Family to listen to it. Fisher heard the

recording of the women telling Purser Sr. that his children were turning against him and intended

to institutionalize him and testified that they sounded to him like “gold diggers.”

Scarbrough, Steele, and Deaton repeatedly denied the existence of this recording in

their discovery responses, depositions, and in sanctions hearings. Scarbrough initially told the Purser

Family’s counsel that all the tapes and audio recordings he had were already produced in discovery.

But during Deaton’s third deposition,8 Scarbrough stated that at one time Deaton had given him

possession of a digital recorder, which he gave to his “IT guy” and returned to Deaton after

producing one recording from that device in discovery—and that he was now aware of another

recording on the device that he had not heard and had not yet produced. Deaton later told the court

that she had disposed of Steele’s digital recorder by giving it to Goodwill or throwing it in the trash.

At the subsequent sanctions hearings arising from this situation, Richeson testified

that without the digital recorder he could not confirm what recordings had been on it and that he no

8 Deaton’s deposition was taken three times, on December 14, 2010, January 7, 2011, and June 29, 2011. Her first deposition ran for several hours but was suspended by agreement of counsel for the re-taking of Clayton Olvera’s deposition. After Deaton’s second deposition, Elizabeth Tipton was added to the lawsuit, resulting in the third setting. Her third deposition was ultimately suspended because of Scarbrough’s announcement that Deaton had additional recorded witness statements of Purser Sr. that had not been produced in discovery.

8 longer had on his server all that he had recovered from the recorder. At the end of the hearing, the

district court imposed $25,000 in sanctions against Scarbrough, $5,000 against Deaton for her

disposal of the digital recorder, and ruled a spoliation instruction could be included in the court’s

charge if the evidence at trial supported it (the court later determined that it did and gave the

instruction at trial). Scarbrough was also ordered to pay sanctions of $11,000 and $15,959.50 for

violating the court’s confidentiality order twice by disclosing information from Purser Sr.’s medical

records to the Temple Police Department and to Purser Sr.’s niece, Carolyn Bolling (to whom

Scarbrough had misrepresented himself as Purser Sr.’s lawyer).

The case proceeded to a jury trial, resulting in a unanimous verdict for the Purser

Family, with a total of $19,440, 000.00 awarded. The lengthy jury trial gave rise to an even lengthier

appeal, the numerous issues of which we address in turn.9

DISCUSSION

I. Defamation issues

A. Defamation of appellees individually

None of the appellants challenge the jury’s finding that they each made statements

that were defamatory and false. Rather, appellants contend that there is no evidence that such

defamatory statement identified any member of the Purser Family individually—i.e., appellants did

not specifically name each individual family member that they defamed—and that a defamatory

statement must be directed at the plaintiff as an ascertainable person to be actionable. However,

9 A bankruptcy court subsequently ruled that the judgment and sanctions orders against Scarbrough are nondischargeable debts. In re Scarbrough, 516 B.R. 897, 924 (Bankr. W.D. Tex. 2014), aff’d, Scarbrough v. Purser, 836 F.3d 447 (5th Cir. 2016).

9 when a group is named and the plaintiff is a readily identifiable member of the group, a cause of

action for defamation exists if those who know and are acquainted with the plaintiff understand that

the statement refers to the plaintiff. See Levine v. Steve Scharn Custom Homes, Inc., 448 S.W.3d 637,

651-52 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); Sellards v. Express-News Corp.,

702 S.W.2d 677, 680 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.); see also McGregor v. Vela,

No. 03-01-00299-CV, 2002 Tex. App. LEXIS 1131, at *12 (Tex. App.—Austin Feb. 14, 2002, no

pet.) (not designated for publication) (“Publication does not require that the plaintiff be named, if

those who know the plaintiff and are acquainted with him understand that the defamatory publication

referred to him.”).

Here, Elizabeth testified that Bill Cooke, a justice of the peace in Killeen, told the

Purser Family that Scarbrough had accused them of Purser Sr.’s murder. Cooke plainly understood

who Scarbrough was referring to when he accused the Purser Family of murder. Scarbrough himself

testified that he reported to the funeral home director Dan Carter, the Temple Police Department and

the Texas Rangers his accusation that the Purser Family had murdered their husband and father.

Scarbrough’s murder accusations against the Purser Family included Purser Sr.’s daughter-in-law,

JoAnn. Scarbrough referred to the incident in which JoAnn struggled with Purser Sr. in the truck

outside Deaton’s house as “evidence” supporting his accusation that JoAnn murdered her

father-in-law.

Under these facts, there was no misunderstanding that Scarbrough’s defamatory

statements were directed at each of the Purser Family appellees. See Levine, 448 S.W.3d at 651-52.

As to Steele and Deaton, the jury heard the recording of the women telling Purser Sr. that his family

could not be trusted and wanted to institutionalize him or put him in a home because they wanted

10 his money. The women referenced Purser Sr.’s wife, his children, and his daughter-in-law when

making these statements. We overrule appellants’ complaint that none of the defamatory statements

on which the jury assessed liability identified any member of the Purser Family individually.

B. Publication of defamatory or false statement

As we have noted, none of the appellants challenge the jury’s finding that they each

made statements that were defamatory and false. However, appellants contend that there is no

evidence that their defamatory statements about the Purser Family were published. “Publication of

defamatory words means to communicate the words, either orally, in writing, or in print, to a third

person capable of understanding their defamatory import and in such a way that the third person

would understand.” Double Diamond, Inc. v. Van Tyne, 109 S.W.3d 848, 854 (Tex. App.—Dallas

2003, no pet.). The instruction on publication in the charge required communication to a

person—other than the appellees—who is capable of understanding its meaning.

As to Scarbrough’s statements, the jury heard Scarbrough himself testify that he told

the Texas Rangers, the Temple Police Department, and Dan Carter, the director of the funeral home

where Scarbrough’s arrangements were being made, about his accusation that the Purser Family had

murdered Purser Sr. Elizabeth testified that Bill Cooke, a justice of the peace in Killeen, told the

Purser Family that Scarbrough had accused them of Purser Sr.’s murder. The jury heard the

recording of Scarbrough talking to Carolyn Bolling—a nonparty to the suit and niece of

Purser Sr.—in which Scarbrough claimed that he represented Purser Sr. and stated that Purser Sr.’s

family intentionally misled doctors and caused his death.

11 As to Steele and Deaton, the jury heard the recording of the women telling

Purser Sr.—a person other than the appellees—that his family could not be trusted and wanted to

institutionalize him or put him in a home because they wanted his money, causing Purser Sr. to

become very suspicious of his family members. Appellants’ contention that there is “no evidence”

that any defamatory or false statements about the Purser Family were published is not supported by

this record as the evidence shows the statements were made to Purser Sr. We overrule appellants’

complaint that none of their defamatory statements were published.

C. Clear-and-convincing evidence that Scarbrough committed defamation per se

The jury found that Scarbrough, in lodging his accusations against the Purser Family,

committed defamation per se. Scarbrough contends that there is no clear-and-convincing evidence

that he made any statement that a witness perceived as tending to affect a person injuriously or

charging a person with illegal or immoral conduct. A false accusation of the commission of a

criminal act is defamatory per se. Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 374

(Tex. 1984).

Here, the jury’s affirmative finding of defamation per se against Scarbrough is

supported by Scarbrough’s own testimony. He acknowledged his statements to Dan Carter accusing

the Purser Family of murdering Purser Sr. by overdosing him with drugs. Scarbrough also testified

that nothing in the record from any medical professional stated that the Purser Family was providing

Purser Sr. too much medication, that he had no direct causation evidence of the Purser Family’s

involvement with Purser Sr.’s demise, and that he had no opinion from an expert medical

professional supporting his suspicion that the family had anything to do with Purser Sr.’s demise.

12 The jury also heard Scarbrough’s recorded conversation with Carolyn Bolling, the Pursers’ niece,

in which Scarbrough accused the Purser Family of Purser Sr.’s murder. Finally, the jury heard the

testimony of Dr. Sharon L. Barber, M.D., who treated Purser Sr. during his last hospitalization and

stated that she saw no signs that Purser Sr. was abused or neglected, that he had been cared for

“[e]xceptionally well” by family members and a caregiver who was present twenty-four hours a day,

and that there was no indication that Scarbrough was correct in his accusation about the Purser

Family having murdered Purser Sr. This evidence was sufficient to produce in the minds of the jury

a firm belief or conviction as to the truth of the Purser Family’s allegations—that Scarbrough

committed defamation per se by falsely accusing the Purser Family of committing the crime of

murder. Further, there is no argument that the murder accusations Scarbrough communicated to

Carter and Bolling were in any way privileged.10 We overrule Scarbrough’s complaint that there is

no clear-and-convincing evidence of his committing defamation per se.

D. No immunity from defamation for Scarbrough’s report to Adult Protective Services

Scarbrough contends that he was entitled to statutory immunity for his report to Adult

Protective Services that Purser Sr. was a victim of elder abuse. However, the record contains a letter

from the Texas Department of Family and Protective Services stating its finding that “the allegations

of Exploitation and Physical Abuse” of Purser Sr. “were INVALID.” The Department also stated

that “[a]ll allegations have been investigated and APS has no concerns at this time.”

10 Scarbrough contends for the first time in his post-submission briefing that his statements about Purser Sr. were protected by “litigation immunity” because, as a pro se defendant, he had an attorney-client relationship with himself. That contention is novel but waived. See Romero v. State, 927 S.W.2d 632, 634 n.2 (Tex. 1996) (concluding that argument raised for first time in post-submission briefing was waived); City of Houston v. Precast Structures, Inc., 60 S.W.3d 331, 340 n.4 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (same).

13 The Texas Human Resources Code requires a report if there is “cause to believe” that

an elderly person is in the state of abuse, neglect, or exploitation. Tex. Hum. Res. Code § 48.051(a).

The statute includes an affirmative defense providing protection for such reports unless they are

made in bad faith or with malice. Id. § 48.054(a) (“A person filing a report under this chapter or

testifying or otherwise participating in any judicial proceeding arising from a petition, report, or

investigation is immune from civil or criminal liability on account of his or her petition, report,

testimony, or participation, unless the person acted in bad faith or with a malicious purpose.”);

see Miranda v. Byles, 390 S.W.3d 543, 552 (Tex. App.—Houston [1st Dist.] 2012, pet. denied)

(concluding that similar protection in section 261.106 of Texas Family Code for reporting child

abuse is affirmative defense); Howard v. White, No. 05-01-01036-CV, 2002 Tex. App. LEXIS 4891,

at *18-20 (Tex. App.—Dallas July 10, 2002, no pet.) (not designated for publication) (concluding

that appellant was not entitled to statutory protection from defamation claims based on her report of

child abuse because she failed to prove that her report was made in good faith).

In raising statutory immunity as an affirmative defense, Scarbrough had the burden

of showing that he was not acting “in bad faith or with a malicious purpose”—i.e., in good

faith—when he made his report of elder abuse. See Tex. Hum. Res. Code § 48.054(a); Byles,

390 S.W.3d at 552; Howard, 2002 Tex. App. LEXIS 4891, at *18-20. Scarbrough failed to meet that

burden. He contends that “there was no evidence that [he] knew that Mr. Purser was not in trouble.”

(Emphasis added.). But that contention impermissibly shifts the burden of proof for his affirmative

defense and is no evidence of his good faith. Further, Scarbrough admitted in his September 26, 2011

deposition that he had not seen Purser Sr. for about five months before making the report and that

14 his report was based on a remark from David Pace, his process server, who allegedly told him that

Purser Sr. “was in real poor condition.” Scarbrough testified:

after David told me that, I was really shocked. And I was saddened. And I called the Adult Protective Service, which is a State agency that has the job of overseeing—protecting elderly people and adults. I called them . . . And I reported it to them. . . . I reported that Mr. Purser was doing very poorly, according to my process server, and that he seemed inappropriate—untimely for me—to me that he would be acting or feeling that bad. And then I asked them to look into it or told them about it.

Information in Pace’s alleged remark provided Scarbrough no “cause to believe” that the Purser

Family was abusing and exploiting Purser Sr., as Scarbrough reported to the Texas Department of

Family and Protective Services, and Scarbrough testified about no other basis for his report. See

Tex. Hum. Res. Code § 48.051(a). With no showing of good faith, we overrule Scarbrough’s

complaint that he was entitled to statutory immunity for his report of elder abuse.

E. Scarbrough was not entitled to his requested qualified-immunity instruction

Scarbrough contends that the district court erred by denying his requested question

and instruction on qualified immunity for actions taken in his capacity as a lawyer for Steele and

Deaton during his investigation and defense of the case including, in his view, the defamatory

statements he made against the Purser Family. We review a trial court’s decision to submit or refuse

a particular instruction for an abuse of discretion. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex.

2006). Omission of an instruction is reversible error only if the omission probably caused the

rendition of an improper judgment. Id.

15 Scarbrough’s requested instruction stated, “Attorneys have qualified immunity from

a suit arising from their discretionary duties in and out of the courtroom in good faith within the

scope of their legal representation of respected [sic] clients.” This proposed instruction required a

“good faith” element that was negated by the jury’s finding that Scarbrough acted maliciously or

with conscious indifference toward the Purser Family.11 Thus, the court’s declining to submit the

instruction as worded was harmless. See id. at 580 (holding that omission of instruction was

harmless because jury’s answer to submitted question negated unsubmitted issue); Laughman v. Sun

Pipe Line Co., 114 S.W. 451, 453 (Tex. Civ. App.—Galveston 1908, no writ) (concluding that any

error in omitting issue from charge would be harmless where jury’s verdict against appellants on

issues that were submitted necessarily includes finding against appellants on omitted issue); see also

James v. Easton, 368 S.W.3d 799, 803 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (“An

attorney generally has immunity from claims by an opposing party based upon conduct the attorney

undertook in the representation of a client, but this immunity does not apply to alleged torts based

upon the attorney’s fraudulent or malicious conduct.”); McGregor, 2002 Tex. App. LEXIS 1131,

at *15-16 (“Because the jury found that the communication was made with actual malice,

McGregor’s claim of qualified privilege would have failed even if the jury had found that the

privilege applied.”). We overrule Scarbrough’s complaint that the court refused his requested

qualified-immunity instruction.

11 That finding was supported by legally sufficient evidence, as we note later in our discussion.

16 F. Defamation damages

The jury was instructed, without objection, that they could award damages if they

found defamation committed by any appellant or defamation per se committed by Scarbrough. The

jury found that all three appellants committed defamation and that Scarbrough also committed

defamation per se. Based on these findings, the jury awarded the Purser Family damages for injury

to reputation in the past and future and for mental anguish in the past and future. Appellants do not

challenge the jury’s awards to the Purser Family for past mental anguish. In fact, their briefing

concedes that “[t]he record is replete with evidence of past damages.”

For injury to reputation, the jury awarded the Purser Family the following damages:

HELEN Steele Deaton Scarbrough past reputation $25,000 $25,000 $150,000 future reputation $25,000 $25,000 $150,000

SUE Steele Deaton Scarbrough past reputation $25,000 $25,000 $50,000 future reputation $30,000 $25,000 $50,000

PURSER JR. Steele Deaton Scarbrough past reputation $25,000 $25,000 $150,000 future reputation $25,000 $25,000 $150,000

JOANN Steele Deaton Scarbrough past reputation $25,000 $50,000 $150,000 future reputation $25,000 $25,000 $150,000

17 ELIZABETH Steele Deaton Scarbrough past reputation 0 0 $150,000 future reputation 0 0 $150,000

Appellants contend that there is no evidence that the Purser Family sustained any injury to their

reputations in the past and no evidence that they will likely sustain injury to their reputations in the

future. We agree that there was no evidence that the defamatory statements by Steele and Deaton,

consisting of their statements to Purser Sr., caused injury to the Purser Family’s reputations in the

past or future, and we sustain their issue.

As to Scarbrough’s statements that were defamatory per se—accusing the family of

elder abuse and murder—evidence of injury to reputation was unnecessary. Texas law presumes that

defamatory per se statements cause reputational harm and entitle a plaintiff to general damages,

including loss of reputation and mental anguish. Burbage v. Burbage, 447 S.W.3d 249, 259 (Tex.

2014). However, that presumption yields only nominal damages. Id. The Texas Supreme Court has

instructed that beyond nominal damages, presumed damages are reviewed for evidentiary support.12

Id. Nominal damages, such as $1, are a trivial sum of money awarded to a litigant who has

established a cause of action but has not established that he is entitled to compensatory damages.

Hancock v. Variyam, 400 S.W.3d 59, 65 (Tex. 2013). In defamation per se cases, nominal damages

are awarded when there is no proof of serious harm resulting from the defendant’s attack on the

plaintiff’s character and reputation or when they are the only damages claimed, and the action is

12 Appellants do not challenge the amounts the jury awarded as damages for defamation, i.e., for injury to reputation and mental anguish.

18 brought to vindicate the plaintiff’s character through a jury verdict establishing the falsity of the

defamatory matter. Id.

Here, because the jury awarded more than nominal damages as to defamation per se,

there must be legally sufficient evidence to support the jury’s findings of damage to the Purser

Family members’ reputations in the past and future. See Burbage, 447 S.W.3d at 259. When

conducting a legal-sufficiency review, we consider the evidence in the light most favorable to the

challenged finding and indulge every reasonable inference that would support it, disregarding

contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 822,

827 (Tex. 2005). To prevail, an appellant must show that no more than a scintilla of evidence

supports a finding on which the opponent had the burden of proof. See Waste Mgmt. of Tex., Inc.

v. Texas Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 156-57 (Tex. 2014); City of Keller,

168 S.W.3d at 826. More than a scintilla of evidence exists to support a finding when the evidence

enables reasonable and fair-minded people to differ in their conclusions. Gharda USA, Inc.

v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015). We may not substitute our judgment for

that of the jury when the evidence falls within the zone of reasonable disagreement, and the jury is

the sole judge of the credibility of the witnesses and the weight to be given to their testimony. See

City of Keller, 168 S.W.3d at 816-17, 819-20, 822.

1. No evidence supporting injury to reputation

The Texas Supreme Court has cautioned that in defamation cases our review of a

jury’s discretionary damage awards remains important to protect free speech, and we must ensure

that noneconomic damages are not simply disguised disapproval of defendants, but compensation

19 for actual injuries. Burbage, 447 S.W.3d at 259. In Burbage, the Court noted that while some

evidence suggested community awareness and discussion of the defamatory statements, there was

only vague testimony about the actual impact of the defamation, the basis for which the damage

award compensated. Id. at 262.

Similarly here, despite the appalling nature of Scarbrough’s assertions, we conclude

that there was no evidence supporting the jury’s findings of injury to the Purser Family’s reputations

in the past and future. The evidence at trial did not demonstrate the actual impact of the defamation

on the Purser Family that would meet the Burbage standard. See id. We sustain Scarbrough’s

complaint that there is no evidence his defamatory statements caused the Purser Family to sustain

injury to their reputations in the past and no evidence that they will likely sustain injury to their

reputations in the future.

2. No evidence supporting damage amounts for future mental anguish

The jury also awarded the Purser Family damages for mental anguish in the past and

future on their defamation claims. As noted above, the jury’s awards for mental anguish in the past,

which total $1,060,000, will stand and none of the appellants challenge them.13 However, appellants

do contend that there is no evidence to support the jury’s award based on the Purser Family suffering

13 Appellants complain that the Purser Family did not segregate “mental disturbances” they sustained as a result of Purser Sr.’s death from “mental disturbances” caused by the appellants’ acts. However, it was appellants’ burden to object if they perceived that a broad-form damages question mixed valid and invalid elements of damages. See Burbage v. Burbage, 447 S.W.3d 249, 255-56 (Tex. 2014). Appellants’ failure to make that objection below waives this complaint. Even if it were preserved, appellants acknowledge that no Texas court has required such a segregation of mental-anguish damages.

20 mental anguish in the future. The jury awarded the following damages to the Purser Family for

future mental anguish:

HELEN Steele Deaton Scarbrough future mental anguish $25,000 $25,000 $150,000

SUE Steele Deaton Scarbrough future mental anguish $25,000 $25,000 $50,000

PURSER JR. Steele Deaton Scarbrough future mental anguish $25,000 $25,000 $150,000

JOANN Steele Deaton Scarbrough future mental anguish $25,000 $25,000 $150,000

ELIZABETH Steele Deaton Scarbrough future mental anguish $25,000 $25,000 $150,000

Because the jury awarded more than nominal damages, there must be legally sufficient evidence to

support the jury’s findings of the Purser Family members’ future mental anguish. See id. at 259. To

support an award for future mental anguish, a plaintiff must demonstrate a reasonable probability of

suffering compensable mental anguish in the future. Adams v. YMCA of San Antonio, 265 S.W.3d 915,

917 (Tex. 2008). Mental anguish is compensable only if it causes a substantial disruption in daily

routine or a high degree of mental pain and distress. Hancock, 400 S.W.3d at 68. Evidence of the

nature, duration, and severity of the mental anguish is required. Id. A plaintiff’s evidence of

continuing depression, humiliation, sleeplessness, headaches, and detrimental effects on daily

21 activities and relationships can be legally sufficient to support an award of damages for future mental

anguish. Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 791 (Tex. 2006). Mental anguish awards are

noneconomic damages that must be compensation for actual injuries and not simply a disguised

disapproval of the defendant. Burbage, 447 S.W.3d at 259.

We conclude that the evidence at trial did not show demonstrate a reasonable

probability that appellants’ defamatory statements would cause the Purser Family to suffer

compensable future mental anguish—i.e, a substantial disruption in daily routine or a high degree

of mental pain and distress. See Adams, 265 S.W.3d at 917. We sustain appellants’ complaint that

there is no evidence to support the jury’s award of damages for the Purser Family’s suffering of

mental anguish in the future.

II. Fraud issues

The jury found that each of the appellants committed fraud against Helen, Purser Sr.’s

widow, in two ways: (1) fraud by misrepresentation and (2) fraud by failure to disclose.

A. Steele and Deaton waived fraud-by-failure-to-disclose issue

Steele and Deaton waived their issue regarding the jury’s finding of “fraud by failure

to disclose” by wholly omitting any briefing of it. See Tex. R. App. P. 38.1(i). The jury was

instructed without objection that they could award damages based on a “Yes” answer for either the

“fraud by misrepresentation” or “fraud by failure to disclose” theory. But Steele and Deaton failed

to address the fraud-by-failure-to-disclose theory, which was an independent basis supporting the

jury’s answer to the fraud question. Thus, the liability finding against Steele and Deaton for fraud

is unchallenged and must stand.

22 B. No evidence of Scarbrough’s fraud by misrepresentation or failure to disclose

Scarbrough contends that there is no evidence supporting the jury’s finding that he

committed fraud by misrepresentation against Helen because there is no evidence he ever said

anything to her. The charge instructed the jury that “fraud by misrepresentation” occurs when:

(A) a party makes a material misrepresentation,

(B) the misrepresentation is made with knowledge of its falsity or made recklessly without any knowledge of the truth and as a positive assertion, and

(C) the misrepresentation is made with the intention that it should be acted on by the other party, and

(D) the other party acts in reliance on the representation and thereby suffers injury.

We agree that there was no evidence at trial of Scarbrough saying anything directly

to Helen, or that he made any misrepresentation to her. To the extent that the misrepresentation at

issue here was the existence of the tape-recorded statements during litigation, that issue is covered

in the sanctions analysis below. We sustain Scarbrough’s complaint that there is no evidence

supporting the jury’s finding that he committed fraud by misrepresentation against Helen.

Scarbrough further contends that there is no evidence supporting the jury’s finding

that he committed fraud by failure to disclose against Helen. The charge instructed the jury that

“fraud by failure to disclose” occurs when:

(A) a party fails to disclose a material fact within the knowledge of that party,

(B) the party knows that the other party is ignorant of the fact and does not have an equal opportunity to discover the truth,

23 (C) the party intends to induce the other party to take some action by failing to disclose the fact, and

(D) the other party suffers injury as a result of acting without knowledge of the undisclosed fact.

Scarbrough contends there is no evidence that as opposing counsel for Steele and Deaton (or later

as a defendant) he had a duty to disclose anything to Helen. Scarbrough notes that there is no private

right of action for violation of the Texas attorney disciplinary rules, thus, any failure to produce

witness-statement recordings in discovery was not a “failure to disclose” that would support Helen’s

fraud claim against him. See Jones v. Blume, 196 S.W.3d 440, 450 (Tex. App.—Dallas 2006, pet.

denied). He also notes that there is no cause of action for “fraud on the community” based on any

fraudulent transfer of marital assets in this context, which does not involve a divorce or probate suit.

Cf. Chu v. Hong, 249 S.W.3d 441, 445 (Tex. 2008); Schlueter v. Schlueter, 975 S.W.2d 584, 589

(Tex. 1998). We agree that there was no evidence at trial that Scarbrough had a duty to disclose

anything to Helen independent of her complaints about his discovery abuse, which were addressed

by sanctions. We sustain Scarbrough’s complaint that there is no evidence supporting the jury’s

finding that he committed fraud by failure to disclose against Helen.

C. Fraud damages

Based on its finding of fraud, the jury awarded Helen damages for loss of community

property and mental anguish (problematically, the jury was not asked to answer with amounts as to

each appellant):

24 loss of community property past mental anguish future mental anguish HELEN $1.5 million $500,000 $250,000

Appellants challenge the sufficiency of the evidence to support the jury’s findings of loss of

community property and mental anguish, contending that there is no evidence that Helen sustained

these damages due to any fraud by appellants.

Based on our conclusion that there is insufficient evidence supporting the fraud claim

against Scarbrough, the fraud damages for loss of community property and mental anguish against

him cannot stand.

As to Steele and Deaton, although they failed to brief the issue of liability, there is

no evidence of any damages resulting from alleged fraud had they committed it, thus there are no

fraud damages for loss of community property and mental anguish. While Steele and Deaton appear

to have taken advantage of Purser Sr., the evidence is not sufficient to prove the elements of fraud.

We sustain Steele’s and Deaton’s complaint that there is no evidence supporting the jury’s damage

findings of loss of community property and mental anguish based on fraud.14

III. Conspiracy issues on defamation and fraud

No evidence of conspiracy

The jury found that appellants were part of a conspiracy that damaged Helen Purser.

Appellants contend that there was no evidence of conspiracy because there was “no evidence of any

14 Based on our resolution of the fraud issue, we need not address appellants’ contention that there was no evidence that they acted in concert with one another in committing fraud.

25 underlying tort.” However, as we have noted, none of the appellants challenged the jury’s finding

that they each made statements that were defamatory and false (they argued only that their statements

did not name specific individuals, were not published, and were not defamatory per se). Thus, the

underlying torts of defamation and defamation per se—for which the jury made an unchallenged

award of past mental anguish damages—survive this appeal.

The conspiracy question in the charge (conditioned on a finding of defamation,

defamation per se, or fraud) instructed the jury that:

To be part of a conspiracy, more than one person must have had knowledge of, agreed to, and intended a common objective or course of action that resulted in the damages to Helen Purser. One or more persons involved in the conspiracy must have performed some act or acts to further the conspiracy. Each co-conspirator is responsible for all acts done by any of the conspirators in furtherance of the unlawful combination.

Although appellants do not challenge the jury’s finding that they made false and defamatory

statements, the evidence showed that Steele and Deaton made their defamatory statements in a

recording with Purser Sr. around May 2010, before they met Scarbrough, and that Scarbrough made

his defamatory statements after Purser Sr.’s death in July 2011. Neither the evidence nor the timing

of their statements supports a finding that when the statements were made, appellants had a common

objective to commit defamation. We sustain appellants’ issue that there was no evidence

of conspiracy.15

15 Based on our resolution of this issue, we need not address appellants’ contention that there was no evidence that they acted in concert with one another in committing defamation.

26 IV. Exemplary damages issues

A. Malice or gross negligence

The jury found that the harm to the Purser Family resulted from malice or gross

negligence. Appellants contend that there is no clear-and-convincing proof supporting the jury’s

finding. The jury was instructed to answer the question on malice or gross negligence only if they

unanimously answered “Yes” to the questions on defamation, defamation per se, or fraud. The

charge defined “clear and convincing evidence,” “malice,” and “gross negligence”:

“Clear and convincing evidence” means the measure or degree of proof that produces a firm belief or conviction of the truth of the allegations sought to be established.

“Malice” means a specific intent by Melissa Deaton, Denise Steele or Jerry Scarbrough, to cause substantial injury or harm to Helen Purser, Sue Van Zanten, Gary “Bubba” Purser, Jr., JoAnn Purser, or Elizabeth Tipton.

“Gross negligence” means an act or omission by Melissa Deaton, Denise Steele or Jerry Scarbrough,

(a) which when viewed objectively from the standpoint of Melissa Deaton, Denise Steele or Jerry Scarbrough at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

(b) of which Melissa Deaton, Denise Steele or Jerry Scarbrough has actual subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

See Tex. Civ. Prac. & Rem. Code §§ 41.001 (defining “clear and convincing,” “malice,” and “gross

negligence”), 41.003 (setting forth standards for recovery of exemplary damages). Because we have

already sustained appellants’ no-evidence issues as to the jury’s damage awards for injury to

reputation (past and future) and for future mental anguish, what remains are the unchallenged awards

27 on the defamation claims for past mental anguish. Exemplary damages based on these awards could

have been supported if the Purser Family showed by clear-and-convincing evidence that the harm

from appellants’ defamatory statements was the result of gross negligence or malice. See Pitts

& Collard, L.L.P. v. Schechter, 369 S.W.3d 301, 331 (Tex. App.—Houston [1st Dist.] 2011, no

pet.); see also Tex. Civ. Prac. & Rem. Code § 41.003(a). A defendant’s repetition of false and

defamatory accusations about plaintiff’s “dishonest, unethical, and illegal behavior” can show

“specific intent to injure” and support a jury’s finding of malice. Pitts, 369 S.W.3d at 331.

1. Steele and Deaton waived issue of gross negligence

Here, the jury made the unchallenged finding that Steele and Deaton made statements

about the Purser Family that were false and defamatory. The statements included telling Purser Sr.

that he could not trust his family, that his family was after his money, and that his family wanted him

institutionalized. Steele and Deaton waived any issue as to whether there was clear-and-convincing

evidence that they made these defamatory statements with gross negligence by failing to brief this

issue. See Tex. R. App. P. 38.1(i). The jury was asked whether the harm to the Purser Family

resulted from malice or gross negligence. But on appeal, Steele and Deaton failed to brief any issue

as to gross negligence, which was an independent basis for the awards of exemplary damages against

them. Thus the jury’s finding of gross negligence against Steele and Deaton is unchallenged and

must stand.

2. Clear-and-convincing evidence of Scarbrough’s malice

As to Scarbrough, the evidence supports the jury’s finding of malice because he

showed a “specific intent to injure” through his repeated false and defamatory statements accusing

28 the Purser Family of elder abuse and murder. Cf. Pitts, 369 S.W.3d at 331. The jury heard

deposition testimony from Scarbrough about his murder accusations and a recording of a phone call

to Carolyn Bolling that Scarbrough made two months after his deposition. In the recording—after

stating that he represented Purser Sr.—Scarbrough told her that the Purser Family abused Purser Sr.,

intentionally misled his doctors, and caused his death.

Scarbrough’s testimony showed that he persisted in making accusations that Purser

Sr. did not have dementia and was murdered by his family despite a lack of evidence and even

Scarbrough’s own admission that he had no medical evidence or medical-expert opinion to support

those accusations. And long before he made his accusations to the Pursers’ niece, a funeral director,

and law enforcement, Scarbrough accidentally recorded himself admitting to his wife that Purser Sr.

had dementia. In addition to that recorded admission, the jury heard Scarbrough acknowledge during

his deposition that Purser Sr. had been diagnosed by his doctors with dementia. The jury also heard

that Scarbrough propounded interrogatories to the deceased Purser Sr.—more than a month after

Purser Sr.’s death and knowing Purser Sr. was deceased—asking about Purser Sr.’s sexual activities

and affairs, and that Scarbrough questioned Helen in a lengthy deposition—held just two months

after her husband’s death—about irrelevant matters such as her medical history and private

intimacies with Purser Sr. The jury further heard Scarbough’s statement to his wife, which he

inadvertently recorded, discussing certain Purser Family members and stating his intent to get “a

million dollars from every one of those sons of bitches” in the lawsuit.

The evidence at trial, viewed in the light most favorable to the jury’s finding of

malice, shows that Scarbrough chose to defame the Purser Family with repeated murder accusations

and attempted to obtain an autopsy to “disprove” Purser Sr. had dementia, despite Scarbrough’s own

29 opinion that Purser Sr. suffered from that condition. The evidence is sufficient to support the jury’s

finding of Scarbrough’s willfulness, and not that Scarbrough had a good-faith belief in his

statements. Further, the evidence was sufficient to produce in the minds of the jury a firm belief or

conviction as to the truth of the allegations of malice—that Scarbrough, by making repeated

accusations of illegal behavior against the Purser Family, had a specific intent to cause

substantial injury or harm to them. See id. We overrule Scarbrough’s complaint that there is no

clear-and-convincing proof that he made his defamatory statements with malice.

B. Exemplary damage awards

The jury unanimously awarded these exemplary damages:

HELEN Steele Deaton Scarbrough exemplary damages $1.5 million $500,000 $2 million

SUE Steele Deaton Scarbrough exemplary damages $500,000 $250,000 $1 million

PURSER JR. Steele Deaton Scarbrough exemplary damages $500,000 $500,000 $2 million

JOANN Steele Deaton Scarbrough exemplary damages $500,000 $500,000 $2 million

ELIZABETH Steele Deaton Scarbrough exemplary damages $500,000 $250,000 $1 million

30 In determining what amount of exemplary damages to award against appellants, if

any, the jury was instructed to consider:

(1) the nature of the wrong;

(2) the character of the conduct involved;

(3) the degree of culpability of Melissa Deaton, Denise Steele, or Jerry Scarbrough;

(4) the situation and sensibilities of the parties concerned;

(5) the extent to which such conduct offends a public sense of justice and propriety; and

(6) the net worth of Melissa Deaton, Denise Steele, or Jerry Scarbrough.

See Tex. Civ. Prac. & Rem. Code § 41.011(a) (setting forth evidence factfinder should consider in

determining amount of exemplary damages award); Service Corp. Int’l v. Guerra, 348 S.W.3d 221,

238 (Tex. 2011) (noting these statutory factors); Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908, 910

(Tex. 1981) (providing analysis of first five factors).

1. Net worth

Scarbrough, Steele, and Deaton contend that the jury’s award of exemplary damages

is excessive and unconstitutional because “[i]f a judgment is so large, in relation to a party’s net

worth, that it is impossible to pay, and it converts the proceeding into a criminal proceeding, wherein

the party is subject to being in jail for an interminable time due to inability to pay.” They cited no

authority in support of this contention.16

16 Scarbrough contends that he has a “negative” net worth. However, there was no evidence at trial of his negative net worth.

31 While evidence of net worth is one factor that the jury considers in its determination

of the proper amount of exemplary damages, introduction of such evidence is not mandatory.

Barnhart v. Morales, 459 S.W.3d 733, 751-52 (Tex. App.—Houston [14th Dist.] 2015, no pet.)

(citing Durban v. Guajardo, 79 S.W.3d 198, 210-11 (Tex. App.—Dallas 2002, no pet.)). Parties

may discover and offer evidence of a defendant’s net worth in cases in which punitive or exemplary

damages may be awarded, Lunsford v. Morris, 746 S.W.2d 471, 472 (Tex. 1988), but a jury is not

required to consider evidence of a defendant’s net worth before imposing exemplary damages,

Barnhart, 459 S.W.3d at 752. Because evidence of a defendant’s net worth is not a prerequisite to

a jury’s imposition of exemplary damages, we conclude that this factor was not determinative of the

awards of exemplary damages against Scarbrough, Steele, and Deaton. See Barnhart, 459 S.W.3d

at 752.

2. Excessiveness

Scarbrough, Steele, and Deaton also contend generally that courts “must consider a

punishment that would deter and punish without being gratuitously excessive.” Bennett v. Reynolds,

No. 03-05-00034-CV, 2010 Tex. App. LEXIS 9213, at *13 (Tex. App.—Austin Nov. 18, 2010, no

pet.) (mem. op. on remand); see also Bunton v. Bentley, 153 S.W.3d 50, 54 (Tex. 2004) (“Ideally,

the court of appeals should automatically reevaluate exemplary damages whenever compensatory

damages are reduced.”). The Texas Supreme Court has stated that exemplary damages should be

“reasonably proportioned to actual damages” and provided the five factors in Alamo National Bank

v. Kraus for courts to consider in determining the reasonableness of an award of exemplary damages.

Dillard Dep’t Stores v. Silva, 148 S.W.3d 370, 373 (Tex. 2004) (citing Kraus, 616 S.W.2d at 910).

In addition to net worth (which we have addressed above), the charge instructed the jury to consider

32 the five Kraus factors: (1) the nature of the wrong; (2) the character of the conduct involved; (3) the

degree of appellants’ culpability; (4) the situation and sensibilities of the parties concerned; and

(5) the extent to which such conduct offends a public sense of justice and propriety.

A. Kraus factors as to Scarbrough

As to Scarbrough, the wrong was his false and defamatory murder accusation. The

jury found by clear-and-convincing evidence that the character of Scarbrough’s conduct was

malicious and as part of its finding, that Scarbrough had a high degree of culpability based on his

“specific intent” to cause substantial injury or harm to the Purser Family. We have concluded that

the evidence, detailed above, was sufficient to support that finding. The evidence at trial on the next

factor, the situation and sensibilities of the parties, also supports the jury’s award of exemplary

damages. The Purser Family, having endured the loss of Purser Sr., then had to deal with the

humiliation of being falsely and repeatedly accused by Scarbrough of causing Purser Sr.’s death.

Scarbrough’s own briefing concedes that this record is “replete with evidence of past damages” that

the Purser Family sustained based on defamation. Finally, regarding the last factor, we conclude that

Scarbrough’s repeatedly making false and defamatory murder accusations against the Purser Family

in this case “offends a public sense of justice and propriety.” Scarbrough claimed to have made his

accusations in an attempt to obtain an autopsy on Purser Sr. “disproving” his dementia. But

Scarbrough believed, as he told his wife, that Purser Sr. had dementia. No medical evidence or

expert supported Scarbrough’s murder accusations, and Scarbrough admitted in his deposition that

Purser Sr. had been diagnosed by his doctors with dementia. Further, Scarbrough told Purser’s niece

four months after Purser Sr. died—when an autopsy was unlikely—that the Purser Family abused

Purser Sr., intentionally misled his doctors, and caused his death.

33 A rational jury could have found that Scarbrough’s repeated defamation of the Purser

Family was not designed to obtain an autopsy disproving Purser Sr.’s dementia, but rather to

leverage his position in the underlying lawsuit. The jury heard Scarbrough admit that he made his

accusations of abuse and exploitation to Adult Protective Services while he was representing Deaton

and seeking a substantial sum of money from Purser Family members. The jury also heard

Scarbrough’s statement to his wife, which he inadvertently recorded, about his intent to get “a

million dollars from every one of those sons of bitches.”17

B. Kraus factors as to Steele and Deaton

As to Steele and Deaton, the wrong was their defamation of the Purser Family in

communicating to Purser Sr. Steele and Deaton told Purser Sr. that his family was after his money,

that his family wanted him institutionalized, and that his family could not be trusted. Steele and

Deaton have not challenged the jury’s finding by clear-and-convincing evidence that their false and

defamatory statements were made with gross negligence. Further, there was sufficient evidence at

trial concerning the nature and character of Steele’s and Deaton’s conduct—i.e., defaming the Purser

Family to Purser Sr. to secure further financial gain—and the high degree of Steele’s and Deaton’s

culpability for that conduct to support the jury’s award of exemplary damages. The evidence at trial

on the next factor, the situations and sensibilities of the parties, also supports the jury’s award of

17 The record shows that Scarbrough engaged in other conduct offensive to a public sense of justice and propriety, including: (1) his propounding interrogatories to the deceased Purser Sr.—more than a month after Purser Sr.’s death and knowing Purser Sr. was deceased—asking about Purser Sr.’s sexual activities and affairs; and (2) his questioning of Helen—in a lengthy deposition held just two months after her husband’s death—about irrelevant matters such as her medical history and private intimacies with Purser Sr.

34 exemplary damages. The jury had sufficient evidence to find that the situation and sensibilities of

the parties involved Steele’s and Deaton’s receiving money from Purser Sr., who was alleged to be

suffering from dementia, planning of further financial gain through a real-estate development scheme

that would net them $2.5 million each, and encouraging Purser Sr. to leave his money to

them—meanwhile persuading him that his family members were the ones scheming against him.

This evidence also supports the jury’s findings that Steele’s and Deaton’s conduct of defaming the

Purser Family to Purser Sr. to secure further financial gain “offended a public sense of justice

and propriety.”

C. Statutory cap

In addition to the Kraus factors, we must consider application of the statutory cap on

such awards in addressing Scarbrough’s, Steele’s, and Deaton’s complaints about the excessiveness

of the jury’s exemplary-damages award. Decisions about whether exemplary damages should be

awarded and the amount of exemplary damages awarded are reserved to the discretion of the trier

of fact, Tex. Civ. Prac. & Rem. Code § 41.010(b), but an exemplary damage award may not exceed

the cap set forth in section 41.008 of the Texas Civil Practice and Remedies Code, id. § 41.008(b).

In the absence of certain types of criminal conduct not implicated here, section 41.008 limits an

award of exemplary damages to the greater of:

(1) (A) two times the amount of economic damages; plus

(B) an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or

(2) $200,000.

35 Id. § 41.008(b).

After reviewing the entire record, analyzing the evidence under the Kraus factors,

considering the amount of compensatory damages, and applying the statutory cap, we conclude

that exemplary damages are recoverable against Scarbrough, Steele, and Deaton. However,

the exemplary-damage awards against them are excessive in light of the statutory cap in

section 41.008(b).

As to Scarbrough, the jury awarded the Purser Family $8,000,000 in exemplary

damages. Applying section 41.008 to the jury’s unchallenged award of $700,000 in noneconomic

damages for past mental anguish results in a maximum award of $700,000 in exemplary damages.

See id. (authorizing award for greater of $200,000 or “an amount equal to any noneconomic damages

found by the jury, not to exceed $750,000”). Because the $8,000,000 exemplary damages award

against Scarbrough exceeds the statutory cap by $7,300,000, we modify the exemplary damage

award to $700,000 to comply with the cap, and affirm the award as modified.

As to Steele, the jury awarded exemplary damages of $3,500,000. Applying section

41.008 to the jury’s unchallenged award of $180,000 in noneconomic damages for past mental

anguish results in a maximum award of $200,000 in exemplary damages. See id. (authorizing award

for greater of $200,000 or “an amount equal to any noneconomic damages found by the jury, not to

exceed $750,000”). Because the $3,500,000 exemplary damages award against Steele exceeds the

statutory cap by $3,300,000, we modify the exemplary damage award to $200,000 to comply with

the cap, and affirm the award as modified.

As to Deaton, the jury awarded exemplary damages of $2,000,000. Applying section

41.008 to the jury’s unchallenged award of $180,000 in noneconomic damages for past mental

36 anguish results in a maximum award of $200,000 in exemplary damages. See id. (authorizing award

for greater of $200,000 or “an amount equal to any noneconomic damages found by the jury, not to

exceed $750,000”). Because the $2,000,000 exemplary damages award against Deaton exceeds the

statutory cap by $1,800,000, we modify the exemplary damage award to $200,000 to comply with

V. Spoliation and discovery-abuse sanctions issues

A. Spoliation instruction as to Scarbrough

Scarbrough contends that the district court erred in giving a spoliation instruction

against him regarding the digital recorder because there is no evidence that he failed to preserve the

digital recorder or had a duty to preserve it when he returned it to Deaton. When conducting a

legal-sufficiency review, we consider the evidence in the light most favorable to the challenged

finding and indulge every reasonable inference that would support it and disregard contrary evidence

unless reasonable jurors could not. City of Keller, 168 S.W.3d at 822, 827. To prevail, an appellant

must show that no more than a scintilla of evidence supports a finding on which the opponent had

the burden of proof. See Waste Mgmt. of Tex., 434 S.W.3d at 156-57; City of Keller, 168 S.W.3d

at 826. More than a scintilla of evidence exists to support a finding when the evidence enables

reasonable and fair-minded people to differ in their conclusions. Gharda USA, 464 S.W.3d at 347.

We may not substitute our judgment for that of the jury when the evidence falls within the zone of

reasonable disagreement, and the jury is the sole judge of the credibility of the witnesses and the

weight to be given to their testimony. See City of Keller, 168 S.W.3d at 816-17, 819-20, 822.

37 We review a trial court’s submission of a spoliation instruction to the jury for an

abuse of discretion. Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 27 (Tex. 2014). Under that

standard, we will reverse only if the court acted “without regard for guiding rules or principles.”

U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). Spoliation of evidence requires two

affirmative findings from the trial court: (1) that the nonproducing party had a duty to preserve the

evidence, and (2) that the nonproducing party breached its duty to preserve material and relevant

evidence. Aldridge, 438 S.W.3d at 20. A spoliation instruction is an appropriate remedy when a

party’s spoliation of evidence is intentional. Id. at 24. Intentional spoliation “includes the concept

of ‘willful blindness,’ which encompasses the scenario in which a party does not directly destroy

evidence known to be relevant and discoverable, but nonetheless allows for its destruction.” Id. at

24-25 (citing Andrew Hebl, Spoliation of Electronically Stored Information, Good Faith, and

Rule 37(e), 29 N. Ill. U. L. Rev. 79, 97-98 (2008)).

Because Scarbrough does not contend that the spoliation instruction was legally

incorrect, we analyze the sufficiency of the evidence based on the charge given. See Kia Motors

Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex. 2014). The charge stated:

You are instructed that Denise Steele, Melissa Deaton and Jerry Scarbrough intentionally did not preserve or failed to produce the digital recorder when they knew or should have known that a claim had been filed and that the digital recorder in their possession or control would be material and relevant to that claim.

Under such circumstances, the failure of Denise Steele, Melissa Deaton and Jerry Scarbrough to preserve or produce evidence within her or his control raises the presumption that if such evidence were produced, it would operate against Denise Steele, Melissa Deaton and Jerry Scarbrough.

38 Scarbrough does not dispute his knowledge that a claim had been filed by the Pursers and that

discovery was ongoing. His contention is that he had no duty to preserve the recorder because the

Pursers did not show that he knew or should have known that the recorder would have been

“material and relevant to that claim.”

Scarbrough acknowledged on the record at Deaton’s third deposition that he had a

duty to determine what was on the recorder. He knew that appellees had requested production of

witness statements, and he stated that Deaton had produced the recorder to him shortly after her

second deposition, representing to him that it contained a recording of a conversation that she and

her sister Kathy Perdue had with Purser Sr., i.e., a recording with statements from two parties to the

lawsuit (the “sister recording”). Deaton’s recollection differed. In her second deposition, Deaton

testified that she had given a tape recording to Scarbrough shortly before that deposition began18 and

that she could not remember what was on that recording: “I would have to relisten to it. I do not

remember what all is on it.” Scarbrough produced that recording and acknowledged that he had a

duty to find out what was on “the tape” (“I think I have an obligation to my client and to you to see

whether or not . . . there are recordings on there that are pertinent to this lawsuit that are not

frivolous”).19 Scarbrough further said it was “absolutely true” that if a lawyer is holding onto

evidence, he is charged with knowledge of what is in that evidence.

18 Deaton changed her testimony in her third deposition, stating that she could not remember when she gave the recorder to Scarbrough. 19 Deaton also identified a separate recording of Purser Sr. that was made at her request by her first attorney, John Redington. The “Redington recording” was not made with the digital recorder but on an analog (microcassette) recorder.

39 But the record shows that Scarbrough failed to perform any inquiry into how many

recordings were on the device and “just assumed that there was one.” He testified that having the

recorder “sure would be helpful” and “it would be really great if we could find that recorder and see

what, if anything, was on it.” He never asked Steele, the owner of the device, about the recorder or

any recordings she had previously made with it: “I don’t know that Ms. Steele ever talked to me

about it.”20 He never asked his IT tech, Shawn Richeson, how many files or recordings were on the

device. But Richeson’s January 11, 2011 billing states “7 individual audio files recovered from USB

digital recorder and returned recorder to Jerry.” Scarbrough testified that he paid Richeson.

Scarbrough did not ask Deaton to preserve the recorder when he returned it to her.

Although the recorder was in good working condition, was not “cheap,” and belonged to Steele,

Deaton testified that sometime between March and April 2011 the recorder “either went to Goodwill

or it went in my trash.” Meanwhile, Scarbrough continued insisting that as far as he knew, he had

produced everything appellees requested. For over six weeks between the time that Deaton told him

that she had disposed of the recorder and the time of the first sanctions hearing, Scarbrough said

nothing to opposing counsel about the lost recorder. When Scarbrough was asked what actions he

took to preserve it, he testified that he asked Richeson to make a CD of it and that he wrote a letter

to Deaton in July 2011 (after she had already disposed of it) asking her to preserve the recorder.

1. The recorder was material

Scarbrough contends that the recorder was duplicative of information already

provided to appellees from Richeson’s server and was not material. “Material evidence” has been

20 This is consistent with Steele’s testimony that she did not converse with Scarbrough about the recorder.

40 defined as “[e]vidence having some logical connection with the facts of the case or the legal issues

presented.” Material Evidence, Black’s Law Dictionary 676 (10th ed. 2014). Contrary to

Scarbrough’s view, the recorder was material evidence and was not merely duplicative. No witness

who had possession or control of the digital recorder confirmed that the recordings on Richeson’s

server duplicated everything that had been on the recorder. In fact, there was evidence suggesting

files were deleted from the recorder. Steele testified that she had taped “several” real estate classes

she was attending “on that particular recorder” and none of those recordings were included in what

Richeson recovered from it. Another recording that was not among the files that Richeson recovered

was one that Deaton testified she had made of Purser Sr. making a settlement offer to her to drop her

counterclaims. Richeson testified that files could be deleted from the recorder, that it is possible to

recover deleted files from the recorder, that he did not attempt to recover any deleted files because

he was not asked to check for files that were deleted, and that determining what had been on the

digital recorder required the recorder itself. Testimony about another claimed discrepancy came

from Scarbrough, who stated that the CD that Richeson provided to him differed from the CD with

the recordings provided to the appellees. Only with the recorder, Richeson said, could he confirm

whether Scarbrough’s CD contained all of the recordings that were recovered from the device.

Based on this evidence, the trial court would not have abused its discretion in finding that the

recorder was evidence that had a logical connection with the facts of or legal issues presented in the

Purser Family’s suit and Scarbrough knew or should have known the recorder was material.

2. The recorder was relevant

Scarbrough next contends that the recorder was not relevant. “Relevant evidence”

is evidence having any tendency to make the existence of any fact that is of consequence to the

41 determination of the action more probable or less probable than it would be without the evidence.

Tex. R. Evid. 401. If there is a logical connection either directly or by inference between the

evidence and a fact to be proved, the evidence is relevant. Clark v. Randalls Food, 317 S.W.3d 351,

357 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). The Purser Family’s suit alleged in part

that Scarbrough’s clients Deaton and Steele initiated an inappropriate relationship with Purser Sr.

and financially exploited him while he suffered from dementia. Portions of the recordings that

Richeson obtained from the recorder depicted conversations between Deaton, Steele, and Purser Sr.

supporting the Purser Family’s allegations.

Based on the witness statements that were recovered from the recorder, all of the

evidence presented during the three-day hearing, and reasonable inferences drawn from that

evidence, the district court would not have abused its discretion in determining that evidence not

recovered from the recorder before Deaton disposed of it was at least potentially relevant to the

Purser Family’s claims and that Scarbrough knew or should have known that the recorder was

relevant. See IQ Holdings, Inc. v. Stewart Title Guar. Co., 451 S.W.3d 861, 868 (Tex.

App.—Houston [1st Dist.] 2014, no pet.) (concluding that appellee’s attorney had duty to preserve

documents that were at least potentially relevant to appellant’s claims against appellees); Clark,

317 S.W.3d at 357.

The evidence in this record, considered in the light most favorable to the trial court’s

ruling, contains more than a scintilla of evidence showing that Scarbrough knew or should have

known that he had a duty to preserve the digital recorder, which was material and relevant to the

lawsuit, and that he failed to do so. The evidence further shows that the district court’s spoliation

instruction was based on more than a scintilla of evidence that Scarbrough failed to preserve the

42 digital recorder and had a duty to preserve it when he returned it to Deaton. There is proof of

Scarbrough’s willful blindness as to the recorder, i.e., that he did not directly destroy evidence

known to be relevant and discoverable, but nonetheless allowed for its destruction. See Aldridge,

438 S.W.3d at 24-25. Scarbrough avoided knowledge of what was on the digital recorder by failing

to perform any inquiry into its contents, not even asking Steele, the owner of the recorder, or

Richeson, who recovered the information for Scarbrough from the recorder, what recordings had

been on it or recovered from it. Scarbrough knew from Deaton’s deposition that the recorder

contained statements from parties to the lawsuit (herself and Purser Sr.), and that she did not

remember “what all was on it.” Despite that testimony, Scarbrough “just assumed that there was

one,” choosing not to confirm whether other recorded statements might be on the device. Then

while discovery was ongoing, Scarbrough returned the recorder not to its owner but to Deaton,

saying nothing to her about preserving it until his letter months later, ultimately allowing for her

disposal of it. Because this record disproves it, we overrule Scarbrough’s complaint that “no

evidence” supported the spoliation instruction.

B. Sufficient evidence of recordings that were not produced

Scarbrough contends that there is no evidence that he destroyed evidence or that the

Purser Family was deprived of evidence he was accused of spoliating. However, as previously

discussed, there was evidence indicating that files were deleted from the recorder: Steele testified

that real-estate classes she recorded were not among the files that Richeson recovered, and Deaton

testified that her recording of a settlement offer that Purser Sr. made to her was not recovered either.

As Richeson made clear, there is no way to determine what had been on the recorder, i.e., what

evidence the Purser Family was deprived of, without the device itself. We overrule Scarbrough’s

43 complaint that there is no evidence that he destroyed evidence or that the Purser Family was deprived

of evidence he was accused of spoliating.

C. Discovery-abuse sanctions against Scarbrough

In five separate orders, the district court awarded Helen monetary sanctions totaling

$54,261.50 for Scarbrough’s discovery abuse, pursuant to the court’s inherent authority and Texas

Rule of Civil Procedure 215. Scarbrough’s final set of issues challenges the imposition of sanctions

against him in three of those orders, which imposed sanctions of $25,000, $15,959.50, and $11,000.21

Scarbrough contends: (1) sanctions imposed for failure to produce all the requested recordings were

not “just”; (2) sanctions imposed for disclosure of Purser’s medical records were not “just” and his

disclosure to Bolling was minimal and inconsequential; and (3) the Purser Family lacked standing

to request sanctions for disclosure of Purser Sr.’s medical records.

A trial court may impose sanctions on any party that abuses the discovery process in

seeking, making, or resisting discovery. See Tex. R. Civ. P. 215.3; Wein v. Sherman,

No. 03-10-00499-CV, 2013 Tex. App. LEXIS 10666, at *39 (Tex. App.—Austin Aug. 23, 2013, no

pet.) (mem. op.) (noting that Rule 215 sanctions are not damages for harm alleged in underlying

lawsuit but are used to punish parties who violate discovery rules). A trial court also has inherent

power to sanction to the extent necessary to deter, alleviate, and counteract bad faith abuse of the

judicial process. IFC Credit Corp. v. Specialty Optical Sys., Inc., 252 S.W.3d 761, 772 (Tex.

App.—Dallas 2008, pet. denied) (citing Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex.

21 Scarbrough failed to brief and has waived any challenge to two other sanctions orders: (1) an order imposing sanctions of $1,150 against him for filing a frivolous motion for sanctions, and (2) an order imposing sanctions of $1,152 against him for filing a frivolous motion for leave to designate responsible third parties.

44 1979)). We review sanctions imposed under Rule 215 or the court’s inherent power for an abuse of

discretion. Koslow’s v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990). We reverse the trial court’s

ruling only if the court acted without reference to any guiding rules or principles, such that its ruling

was arbitrary or unreasonable. American Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex.

2006). Imposition of sanctions is appropriate (1) if there is a direct relationship between the

improper conduct and the sanctions imposed—i.e., the sanctions must be directed against the abuse

and abuser and be tailored to remedy any prejudice the abuse caused—and (2) if the sanctions are

not excessive—i.e., the punishment should fit the crime. TransAmerican Nat. Gas Corp. v. Powell,

811 S.W.2d 913, 917 (Tex. 1991).

1. Sanctions for failure to produce requested recordings were “just”

Scarbrough contends that the $25,000 sanctions award was not “just” because he did

not know that the recorder was relevant and material, requiring preservation. However, as we have

discussed, the recorder was material evidence and was not merely duplicative—no witness who had

possession or control of the digital recorder confirmed that the recordings on Richeson’s server

duplicated everything that had been on the recorder, and there was evidence indicating that files were

deleted from the recorder. We have also discussed that the evidence not recovered from the recorder

before Deaton disposed of it was at least potentially relevant to the Purser Family’s claims, as

indicated by the recordings that were recovered, and that Scarbrough knew or should have known

that the recorder was relevant. See IQ Holdings, Inc., 451 S.W.3d at 868; Clark, 317 S.W.3d at 357.

Scarbrough attempts to shift the blame to others for failure to produce recordings

during discovery. However, the court’s order specified that Scarbrough was also being sanctioned

45 for “his intentional concealment and deception regarding the existence of audio recordings,” conduct

that did not implicate anyone else. Actions that callously disregard the rules of discovery warrant

a presumption that the actor’s claims are meritless because the very purpose of discovery is “to seek

the truth, so that disputes may be decided by what the facts reveal, not by what facts are concealed.”

Khan v. Valliani, 439 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2014, no pet.). With

regard to the order’s omission of reference to consideration of lesser sanctions, we note that

Scarbrough did not raise that complaint below and he has waived it here. See Tex. R. App. P.

33.1(a); Werley v. Cannon, 344 S.W.3d 527, 535 (Tex. App.—El Paso 2011, no pet.) (concluding

that appellant waived his complaint that trial court did not consider less stringent sanctions by failing

to object on that basis below); see also Bell v. Doreman, No. 94-50358, 1994 U.S. App. LEXIS 42994,

at *4 (5th Cir. Aug. 15, 1994) (stating court need not address issues that were not considered by

district court and noting, “Bell’s argument, that the district court failed to consider lesser sanction,

was not presented to the district court.”); The Shops at Legacy (Inland) Ltd. P’ship v. Fine

Autographs & Memorabilia Retail Stores, Inc., No. 05-14-00889-CV, 2015 Tex. App. LEXIS 4724,

at *5-6 (Tex. App.—Dallas May 8, 2015, pet. denied) (mem. op.) (collecting cases on waiver of

appellate complaints about sanctions).

Further, the fees awarded were not excessive. Crews and Ray, the Purser Family’s

attorneys, testified about their hourly rates and detailed their nearly year-long efforts in obtaining

discovery, resulting in their request for fees totaling $53,000. The court’s award of $25,000 was far

less than the total amount of those fees. Scarbrough failed to demonstrate that the court acted

without reference to guiding rules and principles in issuing these sanctions. See American Flood

Research, 192 S.W.3d at 583. We overrule Scarbrough’s complaint that the $25,000 sanctions

46 award was not “just” because he did not know that the recorder was relevant and material,

requiring preservation.

2. Sanctions for disclosure of Purser’s medical records were “just”

Scarbrough’s next two issues complain about the court’s orders imposing sanctions

of $15,959.50 and $11,000 for twice violating the court’s order on the confidentiality of Purser Sr.’s

medical records: once to Officer Sharon Brank of the Killeen Police Department and then to

Carolyn Bolling, Purser Sr.’s niece. During the sanctions hearings, Scarbrough admitted he was

bound by the court order, but he claimed he had to divulge the medical records to a law-enforcement

expert to obtain the autopsy he wanted performed on Purser Sr. However, Scarbrough testified that

the medical records “were of limited value.” Scarbrough minimizes his disclosure to Bolling as a

“slip of the tongue.” The trial court was not persuaded that Scarbrough’s disclosure was inadvertent.

After listening to Scarbrough’s entire recorded conversation with Bolling, the court stated that

Scarbrough had quoted from the medical records in an apparent attempt to prejudice a witness.

Significantly, both of these medical-record disclosures were made along with Scarbrough’s false and

defamatory statements about the Purser Family in an alleged attempt to prove that Purser Sr. did not

have dementia. But Scarbrough’s recorded conversation with his wife revealed that not even

Scarbrough himself believed that theory. Scarbrough failed to demonstrate that the court acted

without reference to guiding rules and principles in issuing these sanctions. See id. We overrule

Scarbrough’s complaint that the $15,959.50 and $11,000 sanctions awards were not “just.”22

22 Scarbrough’s argument about the order’s omission of a reference to consideration of lesser sanctions was not raised below and is waived. See Tex. R. App. P. 33.1(a); Werley v. Cannon, 344 S.W.3d 527, 535 (Tex. App.—El Paso 2011, no pet.); see also Bell v. Doreman, No. 94-50358, 1994 U.S. App. LEXIS 42994, at *4 (5th Cir. Aug. 15, 1994); The Shops at Legacy (Inland) Ltd.

47 3. Standing to seek sanctions

Scarbrough cites no authority for his argument that a violation of a court’s

confidentiality order is unenforceable unless the violation causes injury to someone, thereby

providing them with standing to seek sanctions, and that Helen lacked such standing. See Tex. R.

App. P. 38.1(i). This argument also overlooks the fact that Helen’s confidential information was

also included in the records, including marriage counseling and other personal incidents between

them, and she would have standing to protect the confidentiality of her own information. Scarbrough

failed to demonstrate that the court acted without reference to guiding rules and principles in issuing

these sanctions. See American Flood Research, 192 S.W.3d at 583. We overrule Scarbrough’s

complaint that Helen lacked standing to seek sanctions for his violations of the court’s

confidentiality order.

VI. Waiver of remaining appellate issues

Of the 40 or so appellate issues that Scarbrough, Steele, and Deaton raise, a number

are waived.

A. Appellants waived misjoinder complaint

Appellants contend that the district court lacked jurisdiction over the Purser Family’s

third-party claims against them because they were not liable for all or part of Olvera’s claims against

Purser Sr. in the original lawsuit. However, the Purser Family correctly notes that misjoinder of

actions is a procedural, not jurisdictional matter. See Allison v. Arkansas La. Gas Co., 624 S.W.2d 566,

P’ship v. Fine Autographs & Memorabilia Retail Stores, Inc., No. 05-14-00889-CV, 2015 Tex. App. LEXIS 4724, at *5-6 (Tex. App.—Dallas May 8, 2015, pet. denied) (mem. op.).

48 568 (Tex. 1981); Ford Motor Co. v. Texas Dep’t of Transp., 936 S.W.2d 427, 432 (Tex.

App.—Austin 1996, no writ) (noting that any impediments to joining administrative claims with

counterclaims would not be jurisdictional); see also University of Tex. at Austin v. Hinton,

822 S.W.2d 197, 200 (Tex. App.—Austin 1991, no writ) (concluding that misjoinder complaint

raised for first time on appeal was waived). Under Texas Rule of Civil Procedure 41, misjoinder of

parties may be addressed on a party’s motion or on the court’s own initiative before submission of

the case, allowing improperly joined actions to be severed and each ground of recovery improperly

joined to be docketed as a separate suit between the same parties. Tex. R. Civ. P. 41. Steele and

Deaton raise the issue of misjoinder for the first time on appeal and have waived it. See Tex. R.

App. P. 33.1(a); Hinton, 822 S.W.2d at 200.23

Unlike Steele and Deaton, Scarbrough filed a motion for severance. But it did not

raise his appellate complaint—that the Purser Family’s third-party claims against him were

improperly joined because he was not liable for all or part of Olvera’s claims against

Purser Sr.—rather, the motion contended only that severance was proper because he had inadequate

time to prepare his defense. With this motion, Scarbrough preserved nothing about his misjoinder

complaint. See Tex. R. App. P. 33.1(a); Hinton, 822 S.W.2d at 200. Scarbrough’s misjoinder

complaint is waived.24

23 We note that the case appellants cite in support of their contention that misjoinder is a jurisdictional issue was decided before the promulgation of Rule 41. 24 Even if he had preserved this issue, we review a trial court’s severance ruling for an abuse of discretion, see Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex. 1996), which is not shown on this record. Scarbrough’s motion for severance was denied on the same day that the district court signed Olvera’s nonsuit and dismissal with prejudice of his claims against Purser Sr., leaving only the Purser Family’s third-party claims against appellants in the suit. Thus, there was nothing for the district court to sever.

49 B. Scarbrough waived Rule 13 sanctions complaint

Scarbrough contends that the trial court abused its discretion by denying his motion

for Rule 13 sanctions, but the record shows that Scarbrough withdrew that motion:

THE COURT: Okay, the next matter has to do with Mr. Scarbrough’s Motion for Sanctions for allegedly filing frivolous pleadings under Rule 13. I’ve read the motion. I’ve read the response. Mr. Scarbrough, did you wish to make argument?

SCARBROUGH: Your Honor, I’m going to withdraw that motion.

THE COURT: The motion is withdrawn. The Court grants you[] permission to withdraw the motion.

Scarbrough waived his Rule 13 sanctions complaint. See Tex. R. App. P. 33.1(a).

C. Scarbrough waived issue that discovery sanctions restricted his access to the courts

Scarbrough contends for the first time on appeal that the sanctions imposed against

him for discovery abuse were excessive and unconstitutional because they restricted his access to the

courts. He contends, citing no authority, that the post-judgment filing of his affidavit of net worth,

while “not a formal notice that the sanctions assessed precluded access to the courts, [] should be

considered such a request.” Scarbrough waived his complaint that the discovery sanctions restricted

his access to the courts. See id.

50 D. Steele and Deaton waived spoliation-instruction issue

Steele and Deaton contend that the district court erred in giving a spoliation

instruction because there is no evidence that Steele had custody of the digital recorder or failed to

preserve it, and because there is no evidence that Deaton had a duty to preserve the recorder when

she disposed of it. However, they did not raise the arguments they are making here in their motion

for judgment notwithstanding the verdict and failed to otherwise preserve them for appellate review.

See id.; B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 14 (Tex. App.—Houston [1st Dist.] 2009,

pet. denied) (concluding that issue in JNOV differed from issue asserted on appeal and was waived);

Lee v. Lee, 47 S.W.3d 767, 776-77 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (refusing

to consider appellate complaint distinct from complaint in JNOV that there was no evidence to

support jury’s finding). Steele and Deaton waived their complaint that the district court erred in

giving a spoliation instruction. See Tex. R. App. P. 33.1(a).

CONCLUSION

We affirm the awards of past mental anguish damages for defamation totaling

$1,060,000 ($180,000 against Steele, $180,000 against Deaton, and $700,000 against Scarbrough),

reverse the portions of the judgment awarding the other compensatory damages to the Purser Family

against Scarbrough, Steele, and Deaton, and render judgment that as to the compensatory damages,

the Purser Family take only the $1,060,000 awarded for past mental anguish for defamation. We

modify the exemplary damages awarded against Scarbrough to $700,000, against Steele to $200,000,

and against Deaton to $200,000 by applying the statutory cap and affirm the awards as modified.

Finally, we affirm the district court’s orders imposing discovery-abuse sanctions against Scarbrough

51 in the amounts of $25,000, $15,959.50, $11,000, $1,150, and $1,152 and its order imposing

discovery-abuse sanctions against Deaton in the amount of $5,000.

__________________________________________ Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Field and Bourland

Affirmed in Part; Modified and, as Modified, Affirmed in Part; Reversed and Rendered in Part

Filed: December 30, 2016