## In th e Court of Appeals Second A ppellate District of Texas

at Fort Worth

___________________________ No

. 02

- 20

- 00177

- CV

___________________________

On Appeal from the 235th District Court Cooke County, Texas Trial Court No. CV12

- 00219

Before Su dderth, C .J.; Kerr and Bassel, JJ.

Memorand um Opinion by Justice Kerr 

### C YNTHIA 

### A NN 

### M ITSCH 

### B EARDEN 

### , Appellant

V



### . J ARED 

### L E 

### C LAIR 

### , A ppellee2 MEMORANDUM OPINION
Introduction
T wo horses and t hree people

— Appellant Cynthia An n Mitsch Bearden, Appellee Jared Leclair, and Dr. Da niel Dugan

— are in the center ring of this case. In
late 20 1 1, Le clair was stabling and training horses for clients that included Bearden and Dugan

. Leclair an d Dugan were also h orse

- investment partners but soon to be on the outs when, thr ough L ec lair as agent , Bearden bought Dugan ’ s horse Electric Surge

. Intrigue and c ompl ications that included the untim ely death of another horse, Topper , led Bearden and Dugan to collaborate on B earden ’ s procuring a felony

- theft
indic tment against Leclair over the money Bearden had paid for Electric Surge

. After
the Cooke Coun ty D .A. ’ s off ice later read messages betw een Bearden and Dugan , the
indictment was dismissed and Leclair ’ s records expunged

. Leclair sued Bearden, and a jury found that Bearden had malicio usly prosecuted
Leclair and def amed him by publishing statemen ts online accusing him of enga ging in
theft , m isappropriating client property, and being dishonest in business dealings . The
trial co urt entered judgment aw arding L eclair over $1 million in actu al and ex emplary damages . Beard en has appea led, raising evidentia ry

- suf ficiency and ex c e ssiv e

- damages
issues

. We w ill affirm.
I. Parties Involved Jared Leclair : P rofessi onal h orse trainer and rider ; owns a nd operates a training
and boardi ng facility in Gain esvill e called Lec lai r Reining Horses (for merly L eclair3 Per formance Horses, or LPH ) ; in l ate 2011 was in f i nancial strai ts and going through

a contentious divor c e from then

- wife Heather. Cynthia Ann Mitsc h ( “ Cam ” ) Bearden : A ma t eur horse enth usi ast from childhood ; in 2007, began rid ing comp etitively in h e r ch osen discip line , reining , 1 after a many

ye ar hiatus t o rais e her children ; was a client of LPH from 2008 until 2012 , participa ting in roughly a dozen s hows a year ; between 2009 and 2012, spent well over $350,0 00 buyin g sev eral horse s , i ncluding El ectric Surge (Sur ge) , from Lecl air

. Daniel Dugan , D.D .S

. : Anot h er of LPH ’ s long

- time clients and a 50% partner i n
L & D Partnership

— formed in March 2009 to breed, promot e, tr ain, an d show r eining
horses

— a long with Leclai r, H eat her, and , later, a fourth perso n who does not figure
into this case ; in Nov ember 2011 was in f inancial difficulty himself and owed LPH over $100,000 ; no t a party to this appe al. 2 Scott Rodge r s (dece ased) : Yet another LPH client ; in Spring 2 012 was briefly aligned with Dugan and Bearden

. 3

1 Reining is a dis cipline in which riders guide horses through a series of highly detailed patterns

. See Jon D .B. , Here ’ s What Goes Into A l l of Those ‘ Yellowstone ’ Horse Reining Scenes , O utsider (Dec. 2 , 202 1, 5 :01 P M), ht tp s://outsider.com/entertainmen t/ tv/yel lowstone/reining

- horse

- scenes

- ye llowstone

- explained / (de scribing the “ baf fling equine maneu vers ” in the Para mount television seri es Ye l lowstone ).

2 Dugan and Leclair settled their dispute s i n 2013 , and Dug an rec eived a favorable jury verdic t and ju d gment o n Bearden ’ s third

- party f raud c laim agains t him.

3 Bearde n ha d a similarly unsuccessful third

- part y fraud claim against Rodger s, who died before t r ial

. Bearden has not appeal ed the outc ome of any of her aff irmati ve c la ims.4 II. Factual Background
Th e reining

- horse worl d is “ tight

- kn i t , ” and Cooke Count y is the epicenter of
that wo rld

. Lecla ir was clo se, per sonally, with both Bea r den and Dug an , an d Bearden
and Dug an themselv es became frie nds through reining compet itions and having
ho rses in Lecla ir ’ s faciliti es , where they would see e a ch other regularly.
A. L&D Part nership begins unwinding ; Duga n author i zes Sur ge ’ s sale
. Because of Dugan ’ s and L eclair ’ s respective financial hardships and the
Leclairs ’ pending divorce , in late 2011 Du gan and Leclair began d iscussing how to
dissolve L&D

. In a series of text exchang e s on November 14, 2011 , L ec l air
mentioned that he might have t o sel l Topper , a partner s hip horse , because of Leclair ’ s mounti ng bills

. Dugan responded, “ Wha t ev er u have to do ” and also aut ho rized
Leclair to sell Surge ( “ It ’ s a business dec isio n. Fro m my standpoint u can s ell Electric Surg e as well to get what u need. I u nderstand. It ’ s business ” ). 4
In this same text thread , Dugan r eiterate d that he knew it was just “ busine ss ” ; tha t he trusted Leclair and loved hi m “ l ike a son ” ; and that fro m the s tart, Lec lair had

“ abs olute total control of the buy or sell process as well a s the p artnership s. ” Dugan
also wrote , “ I want to make thi n g s a[ s] easy for u as possible. I f I walk away today, my
credit card ha s an 18.5k ba lance and wha t I o we u. I f t hose balances are p aid, I can resign from part nership and financial obl iga tions and you woul d [be] free to negotiate

4 Dugan had b ought Surge on ly a mo nth e arlier , charging a c redit card th e $18,500 purchase price because he “ did not have the mo ney. ”5 with Heather. ” Lecla ir testified that Du gan knew t hat Lecl a ir needed the money and
told him to cred it Dugan ’ s outstandi ng bi l l to LPH , a common pra ctice among
trainers an d clients and something that Leclair had done previo usl y with Du gan. B. Beard en buy s Surge
. Leclair had occasion ally arranged for Be arden to b uy other of Dugan ’ s horses
in t he past

. In December 2011, Lecl air s u ggested that nearly two

- year

- old Surge would
be a “ good fit ” for Bearden , and she agreed to buy him for $18,500

. Bea rden knew that Dugan owned Su r ge . For t ax reasons, t he transaction was to be effect ive J anu ary 1, 2012 , and
because Bearden needed to tran s f er some mo ney to cover the purc hase price , in
December 2011 she gave Leclair two post

- dated c hec ks , one date d January 2 an d the other Janua ry 4. Le clair told D ugan in Dece mbe r that he had sold Surge to Bearde n, and Leclair considered the sale to h a ve con c l ud ed then through a verbal contract with
Bearden

. Bearde n had no discus sions direct ly wi th Dugan , a situation she des cr ibed as

“ typica l ” when a trainer is br okering a sale.
After January 1, Su rge ’ s recurring monthly c harges were switched out of Dugan ’ s L P H acco unt and into Bearden ’ s , and B ea rden obtained equine insuran ce on Surge with an effecti ve d a te of January 1, 2012

. O n the signed appl ication , which was dated January 1, 2012, she put “ Dugan ” in the “ purchased from ” box and

“ 01/01/2012 ” as the purc has e date

. B eard en also gave the insurance com pany a signed “ statemen t of hea lth ” dated Januar y 1, 20 1 2 , showing that she owned Surge

.6 Dugan ne ver complained abou t the bil ling s witch, nor did he ever demand that
Leclair

— or Bearden

— return Surge to hi m. Likewis e , between Ja nuary and May,
Bearden never as ked D ugan for anything related to the ho rse . LPH ’ s F eb ruary 2012 bill ing st a tement to Dugan applied the $18 ,500 credit for Surge ’ s sale as Dugan and Lecla ir had earlier agreed , leaving Dugan with a balan ce due
of s o me $85, 0 00.
C
. Toppe r ’ s training accident and death ; insuran ce di spute . In the meantime, l ate r i n December 2011 , Topper died whil e being trained , triggering a dispute between Lecla ir and Dugan ov er how t o handle the proceeds of Toppe r ’ s $ 37,500 in suran c e p olicy an d complicating the monetary aspects of t heir partnership diss olution

. 5
O n January 3, 20 12, Dugan te xted Leclair: Jared [,] didn ’ t get much time to talk to u yesterday bu t wanted to make sure bef ore we complete the sale of Su rge and deposit moni e s that we had some definite numbers that we all ag re e t o especia lly with respect to the recent lo ss of Topper and his value. This would hel p me tremendously in making some decisi on s that w ill affec t u and Heather long term. The next day, January 4, Leclai r deposited Bearden ’ s two checks and use d the money

t o p ay some o f his bi lls , as he and D ugan had previously discussed. Leclair did not

5 Leclair ac kno wledged that he deposite d t he insurance mon ey into his LPH business a ccount and that Duga n h ad wan ted th at $37,500 as pa rt of the partn ers hip dis solution.7 interpret Dugan ’ s te xt as withdrawing a uthority to sell Surge, especially sin ce Dugan
knew in December 2011 that Be arden h ad bought him

. Also in J anuary, Dugan told Leclair

— after Bearden ’ s checks were deposited
and sh e had po ss es sion

— that he would not give Sur ge ’ s “ papers ” 6 to Lecl air unti l
after they dissolved the L& D pa r tnership. Leclair relayed that to B earden , and she h a d

no prob lem with th e delay : it “ wasn ’ t a big deal, the horse is a two

- year

- old, it wasn ’ t going to get shown for a year and a half, and she didn ’ t [yet ] need t he paper s . ” From

t hat point until the middle of A pril , the parties ’ relationship rocked a long a s it had.
D. Debacle at a major horse sho w . The annual National Reining Bre eders Cl assic (NRBC) in Katy, Texas , is one of reining ’ s major c ompetiti ons. Up until the mid

- April 2012 NRBC, Bearden had
referred to Lec lair as “ like a son ” to her , even occasi o n ally lending him money

. But

a f ter that competition , their relati onship changed “ drastically. ”
B earden was riding one of her horse s in a higher class of the competition than
she was accustomed to

— Leclair compare d it to go ing from playin g high

- school

6 The Americ an Quarter H orse Associa tion, or AQH A, maintains ownership records , a nd when a horse is sold, the owner

– seller prov ides the buyer (or an interme diary ) with the papers

— proof of the se ller ’ s owner sh ip

— an d a t ransfer fo rm is se n t in to AQ HA t o show the change in record title

. I f f or so me reason a seller does not pr ovi de papers , the AQHA has a system by which the new owner ca n get t he horse registered in his or her name . ( “ [Y]ou ca n se nd yo ur c a ncele d checks to the [AQH A] and they w ill s tart a proces s to get you paperwork. ” ) Bear den knew about but never initi ate d that process with the AQHA, nor did she ever ask for Sur ge ’ s papers between January and May 2012

.8 foot b a ll to college foot ball

— and p erformed poorly enough to score a zero . Sean Jo hnson, another traine r, witnes sed the even t and opined that B ea rden “ acted very nervous showing that horse. ” J ohn son did not recal l if Bearden had not previously

s hown at a compet i t

ion as large as the NRB C, “ b ut it certainly did come acr oss that
way ” ; such shows involve “ a l ot pr essure and a lot of nerves

. ” Right a fter her score , Bearden made it publicly k nown that she was very up set , and she acknowledged that her conduct ha d upse t others at the show. Johnson

ov erhea rd a “ f air amount of yelling and cryi ng to the point where [L eclair] tried to explain what happened, as they we re wa tching t h e vid eo [of her r ide] . And, ultimately, he kind of had to walk away

. ” Lec lair described Bearde n as “ really, really, re ally mad ” ; she b l am ed him for what she consid ered an improperly trained ho rs e , in contrast to
both Leclair ’ s and John so n ’ s v iew s that the h orse was prepared

. 7 According to Leclair,
Bearden wen t on to say “ negative things ” about him a t the sho w. Afte r the NRBC, Leclair men ti oned to others that he might have to ask
Bearden to lea ve his barn an d find ano ther train e r, which Bearden characterized as making her feel “ hurt. ” Leclair said that when she contacted him after learning of that
p o s sibilit y , she “ s cream[ed] ” at him.

7 Bearde n conceded that she rec eiv ed a zero because she had put two hands on the reins but testified that th e horse “ ran off with ” he r so that it took bot h hands to stop him. Johnson disagreed t hat the horse had run off with her but explained that using two hands in reining resul ts i n a zer o score.9 E. Aftermath of the NR BC : Bearden and Dugan make a secr et de al. In late April 2012, Heather Leclair

— still going through the nasty divorce

— and Dugan ’ s gir lf riend, Nanette Co mbs, both reach ed out to Bear den and enco urag e d her

to contact Duga n to get h is “ insight ” and “ clarity

. ” W hen Bearden and Du gan spoke

s evera l d ays later , Dugan ( according to Bearde n ) told her that Leclair had not had his permission to sell Surge

. But Dug an also purp orted ly told Bearden that he would g i v e her the papers as soo n as Leclair paid h im the $18,500 and also “ some insur ance
pr oceeds ”

— the $37,500 on T opper ’ s life

. Bearden agreed that o n April 28, 2012, she and Dugan made “ a sec ret side
agreement
. ” In a text exchange early that morning, Dugan w r ot e, “ I will do what I
hav e to make that trans act ion a positive , b ut do no t tell anyone. It [is] a t rump I have with [Le clair]. ” Bearden texted, “ No worries I ’ m totally with ya ! ” At trial, Bearden first said that thes e texts referred simply to the fact t h at if
D ugan “ got the money from M r. Leclair fo r the ho rse, [she] wou ld get the p apers , ” although she could not explain wh y that would be a secret. Bearden later referre d to Topper ’ s insurance proceeds as a second compon en t and agree d that s he “ knew that
D a nny Dugan wanted to get mo re tha n just the money for Elec tric Surge from Jared
Leclair. ” 8

8 A fter Bearden became his “ tru mp, ” Dugan increased his d emands

. He acknow ledged that he had “ wanted to do wha tever it took, ” “ [w]hether it was criminal, civil, ” to get his money.10 B eard en discussed the situation with trainer Sean Johnson

. Ac cording to him , Be arden said that she ha d boug ht Sur ge , th a t Duga n had the papers , and that Le clair
ha d act ed wrongly by not paying the $18 ,500 over to Dugan. Johnson did not know at the time that Lec lai r had credited Dugan ’ s bill by that amount , but b ased on what
Be arden told him , he te xted h e r on May 3

— the same day she moved he r horses out
of Leclair ’ s f a c ility 9

— that Lecla ir might have committed a crime. Bearden texted back,

“ All ok with [ Dugan] but sti ll his ‘ trump card ’ in the lawsuit aga inst Jare d

- it ’ s g onn a get real u g ly. ” 10
From previous conver sations , Jo h nson understood Bearden to be r efer ring to a d e al between her and Dug an for her to be a criminal complainant a gainst Lecla ir. Johns on also unde r stood that the arr angement between Bear den and D ugan was for Dugan to keep Sur ge ’ s pa pers in his nam e until h is civi l case a gainst Leclair was over.

9 Beard en texted Dugan on May 4 that Leclair had “ had the nerv e ” to ask her t o pay her final bill to LPH bef ore moving her ho rses and that she “ went off on him! Should be int erest i ng when I ask for horse pap ers. ” Bearden i nitially move d h er horses to Tim McQua y ’ s barn , b ut in early July 2012 she switched to Johns on ’ s , r emaini ng the re for only a bout six m onths. Both moves occurred without Bearden ’ s needi ng Surge ’ s pape rs.

10 Dugan sue d Leclair on May 22, 2012 , for breac h of the partnership ag reement an d othe r causes of actio n arising, in par t, from Duga n ’ s posit ion that Leclair owed him To pper ’ s insuran ce proceeds as we ll as the proceeds from sel lin g Surge. In September 2012, while that litigatio n was ongoing, D ugan simply gave Bearden Surge ’s p ape rs because she nee ded th em to have the hor se gelded at J ohnson ’ s , and Dugan also s igned the AQ H A transf e r f orm ; it s howed J an u ary 10, 2012 as the sale date

.11 Bear den a g reed that she had “ told Sean John son about this whole scare tactic vendetta, a nd he said, well, in that case, don ’ t put thos e papers in you r name . ”
Bearden tol d Johnson th at she knew t hat Lec lair was authorized to se ll the
horse but still intended to ma k e a cri minal complaint against him. As for Bearden ’ s opi ni on that Leclair ’ s malfeasance had cons i sted of taking her c hec ks but not paying Duga n in turn , Johnso n thought i t made no sense for Bearden to accuse Leclair of

“ horse theft ” : “ [Leclai r] never stol e a horse from her. So if anything, according to th e story I got, the horse, to me had be en stolen from [ Dugan ]. So it should have been [Dugan] making the crimi nal accusat ions

. ” Johnson ’ s overall impression was that Bearden was “ mad ” at Leclair and

“ wanted t o pu ni sh ” him.
F. Bearden press ure s Leclair.
O n May 4, 2012

— the day after telling Johnson abou t her “ trump card ” deal
wit h Dugan

— Bearden te xted Leclai r: “ Where a re papers on Surge? ” Bearden
continued: “ y ou sold me the horse and I want the papers! ” ; “ If [ Dugan] still has
paper s you need to t a lk to him ” ; a nd “ W hat e ver is going on betw een you and [D ug an]
does not inv olve me so y ou best do whatev er it takes to get me those papers very

soon. ” This was her first

- ever written demand for papers. On May 7, she w r ote, “ If I do not have a bill of sale today by 4:00 I wil l contact
my attorney, sheri ffs, NRHA & AQHA

- this can get ve ry nasty if that is what you
wish

- I do believe it is called FRAUD. ”12 On May 8 , Bearden continued , demanding t he papers “ no lat er than We d

. I do not want to pursue l egal action against you as it will be ve ry ugly. Rest assured I will
d o w hatever it takes to get my propert y ” ; the “ bottom line is you sold me a horse that
you were told not to sell. ” Leclair explained , “ I to ld [Dugan] I wa s s el l i ng [ Surge] to
yo u [J] an first becaus e of tax re asons t h e deal was done then he told me he didn ’ t

want t o sell anything I told he [sic] after my div o r ce I would give him the money
back [ 11 ]

. . . he knew the horse was b e ing sold to g o to war ds his bi ll I t ol d you th at
. ”
Leclair ’ s text also r aised a question: “ [W]hy would I sell you a h orse . . . that was n ’ t for sale to [someone who] was my best customer that doesn ’ t make sense

. ”
Leclair offered to give Bearden he r mone y back , but Bearden re s ponded that
she w o u ld “ not ac ce pt that money, I bought a horse and I wa nt the h or se and I w ill get it some how ” and added, “ Do not att empt to give me $$$ for [S]urge. ” 12 Also on May 8, Bearden ’ s lawyer wrote a demand letter to Leclair that read in part:
Ms. Bearden has not r e ceived th e AQHA Registration Papers for th e colt. She has no w l earned that the colt ’ s registered own er is Daniel Dugan

. Mr. Dugan asserts he has not received payment for purchase of the ho r se.

11 Thi s was a reference to a proposal that had evolved for all the partnership horses to go int o Leclair ’ s divorce , and on ce the di vorc e was final, bec ause Dugan still had a cr edit

- ca rd bal ance o n Surg e , Lecla ir could then rai s e money ( presumably by sel ling some horses ) and pay D ugan $18,500

. Lecl air agreed that this di ffered from the initial deal to cre dit Dugan ’ s outstanding LPH bil l, which Leclair did in January 2012, and tha t it wa s inco nsiste nt

— “ [p] aying him back wasn ’ t th e right choice of words

. ”

12 Bearden could not explain at trial why she d id no t simpl y take the $18,500 from Leclair and pa y it over to Dugan if that wa s truly the holdup on getting the papers

.13 Thi s is a formal demand to you i nd ividually, to secu re the ne c e ssary AQH A Registration Papers for Electri c Surge and prov ide them to Ms. Bearden within twenty

- one (21) days from the date of this letter. Your failure to deliver the documents or [to make ] satisfa ctory ar rangements for Ms. Be arden to [ ] obtain the docu m e nt s will re su lt in all appropriate legal r ecourse available on Ms. Bear den ’ s behalf. [ Emphasis a dded. ] Bearde n knew that Leclair could not comply with that demand without Dugan ’ s

coo peration

. For Dugan ’ s part, he wrote Heather on May 9 , c o pying Bearden, t o lay

out ex panded details of eve rything he expected to receive from the partner ship
d issolution and his “ plan to continue with a strong arm of legal confront a tion as
disc ussed. ” Beard en a ssured hi m that she was “ in all the way , wh a tever it takes

. ”
O n Ma y 10, Be arden tex ted Dugan that Lecla ir “ best get you that 50k r eally
soon! ” and texted Rodgers th at Lec lair “ needs to be aware that on day 22 un less [Duga n] has 50k ”

— obviously not just Surge ’ s $18,500

— “ I am goin g straight to DA ’ s office. ” Day 22 after the d emand letter would have been May 30, 2012.
But Bearden moved proactive ly , texting Dugan on May 14 that the two of them
shoul d meet with the Co oke County D istrict A ttorney to “ l ay the ground wor k ”
before t he demand

- letter deadline; Be arden viewed the DA a s “ the scare tactic for

sure. ” Dugan agreed, and Bearden arranged f or them to meet on May 16 with DA Janice Warder, who inc luded A ssi stant DA Ron Poole in th e ir meeting

. Based on
Bearden ’ s and Dug an ’ s story

— th at Lec la ir had sold Surge to Bearden for $1 8,5 0 0 bu t did not own the horse and did not give Bearden the papers , and that Le cla ir did not14 ha ve Du gan ’ s per mission to sel l Surge

— Poole p resented a case for felony theft to the
C ooke County grand ju r y a week later.
G. Bearden testifies before the grand jur y ; Leclair is indicted
. O n May 2 3, 2012 , Bearden w as the sole grand

- jury witness. Sh e testifi ed t hat
she had bought the horse from Leclair “ on, like, Janua ry t he second , ” then “ fast forward to April , ” when she learned that “ the horse was truly not for s al e , and was
not his to sell. ” Sh e “ fir st discover[ed ]

. . . that Jare d Lecla ir did not have authori t y to

se ll ” t h e horse “ ar ound the first part of May ” and she “ had a c onvers ation with the

owner

- - the actual owner

- of

- re cord of the horse

. ” Bearden told th e g r and jury that
Lec la ir “ k n ew that Dugan was the owner , ” and Lec lair had “ sold [her] a hors e that
didn ’ t belong to him. ” Bearden had “ pos session of the horse, ” but “ not a title. ” A grand juror asked, “ And the original owner wants his horse back? ” t o whi ch B e ard en
respo nded, “ Yes. Exactly. ” 13 The grand jury re tur ned an indict ment for a state

- jail

- fe lony offense , chargin g that Leclair had “ intentionally or knowingly, with intent to deprive Cynthia Bearden,
the owner of property, acqui r ed or oth erwise exercise d c ontrol over current money of
the United Sta t es of A merica, without t he owner ’ s effective co nsent , and the value of the property stolen was $1 500 or more, but less than $20,000. ” See Tex. Penal Code

13

Joh nson testi fied th at all of th is grand

- jury t estimon y was “in consistent ” with what Bearden had told him. At trial , Bearden conceded that Dugan had ne ver done anything incon s istent with her owning Surge

.15 Ann. § 31.03 (e)(4)

. 14 A wa rrant was issue d for Leclair ’ s a r rest shortl y afterward

. H e turned hims elf in , wa s handcuffed and book ed, spent four hours of a n ight in jail, and
was released after posting bond.
When the local newspaper reported the story, B e arden texted Johnson : “ Seems that Superstar made the Gainesv i lle p a per and not in a good way

- not sure of details
but it ’ s in there! ”
H. B earden has a questio n planted

— and answer s it
—in a n on line reining forum
. Before th e sun came up the day after her gra n d

- j ury tes timony, Beard en sought

an inv it ation to join a re i n ing

- commu nity F acebook group

. She got the ball rolling by

tex ting Joe Curtis , a friend and silve rsmi th who se business Beard en pa tronize d : “ So
h ow do I go on the sit e, is it on Facebook? ” T his was two minutes after texting Duga n, “ I will sleep well tonigh t ! ! It ’ s done now let ’ s see the snake slither!!! ” Curtis
then spoke with Paula Parkhi ll , also invo lved with re ini ng , and the tw o of them
i nv i ted Bearden to the grou p
. Ad mitte dly because she wanted to get the story out on social me dia, Bearden
ag reed that s h e “ pre

- arranged ” to have Parkhill pose a que stion to the forum : “ Has
anyone had a trai ner stea l f rom you or sell your horse and then not p ay y ou f or it ? ”
That allowed Bearden to weigh in : “ For the record Paula thi s exact thing has recently

14 The statute ’ s current r an ge is betwe en $2,500 a nd $30,000. A pe rson co n victe d of a state

- jail felony can be impr i soned for b etween 180 days and two years and fined up to $10,000. See Tex. Penal Code Ann. § 12.35 (a), (b).16 happened to me ”

— h er “ X trainer Jared Leclair sold m e a horse that he was ab solut ely

t old N OT to sell by the owne r and his busine ss partner ” ; she had “ given him every
op portunity to make this right bu t to no avail ” ; and she “ [h]at e[d] to air di rty laundry
here but feel as t hough the industry should be aware as to the ‘ di rty dealers ’ ou t there. ” She adde d, “ And obvious ly Mr . Leclair has yet to pay the owner the m oney I gave him fo r the horse! ” 15
In response to a sympat heti c question , Bearden assured the forum ’ s readers
that s h e had her canceled check and “ ha[d] cont ac ted th e ow ner who will upon receiving the funds fo r th e horse I purc hased along with ins ura n ce funds on a horse
that wa s killed he will release p aper s to me. It is going to be an ugly legal battle for us
all. Har d to believ e someone wou ld do all this to th eir ve ry b est customers !! ”
As with Bea rden ’ s grand

- j ur y ap pearance, t his o rche strated Q&A took place
before t h e demand letter ’ s deadline

. I. After reviewing Bearden ’ s and Dugan ’ s texts, the DA ’ s office dismisses t h e i ndictment
. At the ir initial May 1 6 meeting , Poole had asked Be arden and Dugan to p rovide
thei r cell phon es for rev iew be cause Bearden had menti oned some pertinent text exchanges with Leclair

. After Poole later s aw certain texts and m et with L ec lair ’ s

15 Bea rde n ’ s post came two weeks after Leclair reminded her that Du gan “ kn ew the horse was b e ing sol d to go towar ds his bill [;] I t old you that

. ” Bear den acknowled ged at trial that she knew at that time that Dugan and Leclair were involved in a part ner ship dispute and th at she didn ’ t know w hi ch of them owed t he other mo ney.17 d e fense attorney, Po ole concluded that he and the grand jury had n ot been told the
truth. On July 2, 2012, Poole moved to dismiss the charges ; he also had Leclair ’ s record s expunged.
Around th is time , B e ard e n was moving her horses from McQuay ’ s to Johnson ’ s and

— anticipati ng that Lec la ir would sue her

— told J ohnson that “ she may
have to sue [ Dug a n ] to ma ke it look right. ” 16 The Cooke County DA ’ s office considered fili ng agg ravated

- perjury charge s against Be arden but for various reaso ns ultimately decided not t o . III. Pro cedural Background
T h i s case began on May 22, 2012, when Dug a n sued Lecla ir the day be fore
Bearden ’ s grand

- jury testimony

. By the time it was tried in October 20 1 9, par ties and
causes of action had be en rearranged and distilled i nto (1) Lec lair ’ s cl aims against
Bearde n f or maliciou s prosecution and defamatio n and (2) Bea rden ’ s third

- party f raud claims against Dugan and Rodgers. The jury found in Leclai r ’ s favor on his claims and against Bearden on her s . The jury assessed ma liciou s

- prosecution da m a ges totaling

16 Even though Bearden ’ s trial t heory a gainst Dugan was that he had lied and misle d her into initiating criminal proceedings against Lecla ir by not telling her of his No vem ber 2011 authorization to sell Surge , Bearden and D ugan st ayed united in their go al of destroying Leclair even a fter the in dictme nt was d ismissed. (Bearden to Dugan
o n July 3: “ Please please Danny don ’ t weaken on your suit with him

- stay strong and carr y o n!! ” ) Bearden was greatl y upset , not with Dugan but with the DA ’ s dismissing the indictment , telling Dugan on July 8 th at s he fel t “ grossly misle [ d ] by them. ” In late August, Dugan texted her about an attorney who had “ agreed to figh t M r. Leclair for
us. ” Bearden sued Du gan only after L eclair had sued her

.18 $ 6 59,855 ( $9,855 for defe nding the criminal charge, $500,000 in past mental anguish , and $150,000 for reputat i onal h arm) ; $50,000 for reput ation al harm from Bearden ’ s d efamation ; a nd $500,000 in exem pla ry damages for malicious pro secution. 17
A f ter applyin g a $15,000 Dugan

- related settlement credit , the trial court enter e d judgment in Febr uary 2020 awarding L eclair $694,855 in ac tual dam ages and $500,000 in exemplary damages. Bearden posted a cas h bond, and t hi s appeal
fo llowed.
IV. Issues
Bear d e n ra i ses four iss u es , which we paraphrase :

• Leclair did n ot rebut the pre sumption that Bearden ha d probabl e cause to initiate c r iminal proceedings , but if he did , the evidence conclusively proved that she did ha ve probable cause

.

• The evidence was insuff i c i e nt to support one eleme nt of defamation liab ility : wheth e r Bearden “ negligently published a defa mator y statement ”

— that is, whether Bearden “ knew or should h ave known ” that her statement s accusing Leclair of engaging in theft, misappropriating client p r o p e r ty, and being dish onest in his business dealings were f a l se and potentially defamatory

.

• The evid ence wa s insufficient to support compensable reputation and mental

- a nguish damages , but if suffic ient, the jury ’ s award s were exces s ive.

• I f we suggest a remit t i t u r of th e d a mages amounts , the $500,000 exemplary

- damage award shou ld in turn be re evaluated

.

17 Leclair had aske d the jury for $2 million for mental a ngu ish an d $1.5 millio n for reputation al harm

.19 V
. Standa rd s of Re view We may sustain a legal

- sufficiency challeng e

— that is, a no

- eviden ce challenge

— only when , among oth er th i ngs, the evid ence offered to pr o v e a vital fact
is no m ore than a mere scintilla, or the evidence establishe s conclusively the op posite

o f a vital fac t. Gunn v. McCoy , 554 S.W.3d 645, 658 (Tex. 2 018)

. In determining l egal
sufficien cy , we must conside r evi d ence favorabl e to the finding i f a reasonable
factfinde r could , and we must disregard contrary ev idence unle ss a reasonable
factf inder co uld not. Cent

. Ready Mix Concr ete Co. v. Islas , 228 S.W.3d 649, 651 (Tex.
2007 ); City o f Keller v. Wilson , 168 S. W.3d 8 02, 827 (Tex. 2005). W e indulge “ every reasonable infer ence deducible from the evidence ” in suppo rt of the c hallenged finding. Gu nn , 554 S.W.3d at 65 8 (quoting Bustam ante v. Ponte , 529 S.W.3d 44 7,
456 (Tex. 2017))

. When reviewing an assertion that the e vidence is fa ctually insufficient , we set aside t he challenged finding only if, after considering and weighin g all the pertinent

re cord e vid ence, w e determine tha t the credible evidence supportin g the finding is so

wea k, or so contrary to t he overwhelming wei ght of all the evidence, that t h e finding
should be set a side and a new trial ordered. Pool v. Ford Motor Co. , 715 S.W.2d 629,
6 35 (Te x. 1986) ( o p. on reh’g); Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986); Garza v.
Alviar , 395 S.W.2d 821 , 823 (Tex. 1965 ). This review is not as restrict i v e in scope as a legal

- suf ficiency review, but remains deferent ial to found facts that are suppor ted by
th e weigh t of the e vidence. Jelinek v. Casas , 328 S.W.3d 526, 538 (Tex. 2010); B e llefonte20 Underwriters In s. Co. v. Bro wn , 704 S.W.2d 742, 744

– 45 (Tex. 1 9 86). “ Wh en evidence conflicts, the jury ’ s role is to evaluate the credibil ity of the wi tnesses a nd rec o ncile any inconsistencies, and as a general proposition, the jury may believe al l or any part of
the testimon y of any wit ness and disregard all or any p a rt of th e testimony of any witness. ” Anderson v. Durant , 550 S .W.3d 605, 6 16 (Tex. 2018) (cleane d up).
VI. Malic ious Prose cution: Probable Cause
Of the several elements of a maliciou s

- prosec u tion claim, 18 Bearden chal leng es only whether she lacked p robab l e cause to initiate cr iminal proceedings against Leclair
for felon y theft o f her money . S he argue s that Lecl air f ailed to overcome the legal presumption of proba ble cause and that , eve n if he did, her probable cause was

co nclusi vely established as a matte r of law. By its verdict , the jury found

— along wi th the other elem ents

— that Bearden
did not have p robab le cause , and we agree.
A. Applicable l egal pr inciples
The jury was instructed tha t “ the probabl e [

- ] cau se determinat ion asks whether a reasonable perso n would believe that a crime had been committed given the facts a s the com plainant honestly and re ason ably belie ved them to be befo re the criminal

18 A plaintiff must establish (1) that a cr imi nal prosecution was commenced against him, (2) that the de fendant initi ated or procured it , (3) that the prosecution termi nated i n the plaintiff ’ s favor, (4 ) his innoc ence, ( 5) the ab s enc e of probable cause for the proceedin gs , (6) the defendant ’ s mal ic e i n filing the charge, and ( 7) damage to the plaintiff. R ich ey v. Brooksh ire Grocery Co. , 95 2 S.W.2d 515, 517 (Tex. 1997).21 proceedings w ere instituted. ” See R ichey , 952 S.W. 2d at 517. To f oster soci ety ’s interest
in encouraging citi z e n s to report crimes, real or imagined, cour t s “must presum e tha t the defendant acted r easonably and h ad prob able cause to initiate criminal proceedin gs. ” Kroger Tex. Ltd. P ’ship v. Suberu , 216 S.W.3d 788, 793 ( Tex. 2006)

. Rebut ting this presumption requi r e s the plaintiff to produce evidence that other
information or m otives upon which the defendant a cted undercut probable cause

— that is, that some infor mati on or motives “ d emo nstra te that [the defendant] did not

r easonably believe [the plaintiff] was guilty o f ” the c rime charged. Id. at 794

– 95 ( “ Suberu was required to pr oduce evidence that Kroger initi a ted h er prosecution
on the basis of info rmation or mo tive s that do not su p po rt a reasonable belief that she was gu ilty of shoplifting

. ” )

. With such evide nce, t h e presum ption “ disappe ars , ”
and the burden shift s to the defend ant to prove probab le cause

. Aki n v. D ah l , 661 S.W.2d 917, 920 (Tex. 1 983)

. T he “ criti cal question ” is the co mplainant ’ s s tate of
min d

. Suberu , 216 S.W.3d at 795. Events occurring

— or informat i o n obtained

— after a prosecution is initiated are
irrelevant to the proba ble

- cau se inquiry. Akin , 661 S.W.2d at 920 ( holding t hat “ only ” existing even t s m atter in determinin g probable cause ) ; Digby v. Tex. Bank , 943 S.W.2d 914, 921 (Tex. A p p.

— El Paso 1997, w rit denied) ( “ Texas courts have consistently
he ld that probabl e cause should be evaluated from t he p erspective of th e person or entit y who
made the repo rt t o law enforceme nt authorities, at the time that the r eport was made

. ” )

. A dd i tionally, although a ma l icious

- prosecution defen dant ’ s fa ilure to disclose all22 relevant facts t o the police or a prosecutor ca n go to malice and caus atio n , it ha s no bearin g on probable cause. Ric hey , 952 S.W.2 d at 519.
Unles s the fa cts underlying the ini t iation of a pro secution are undisputed, in
whic h case probable cause is a question of law , the is sue is for a jury to decide. Id. at 518 ( “ When th e fact s underlying the de fendant ’ s decision to prosecute are di sputed,
the trie r of fact must weigh evidence a nd resolve conflicts to determine if probable

c ause exists, as a mixed question of law and fac t. ” )

. B. Ana ly sis
1. Evidence overco ming the presump tion of probable cause S u beru provides one example of the pr esumption never disappearing. Suberu
lost her c a se against Kroger b ecau s e the presu mption stood: she had no e vidence that Kroger had a motive to ac cuse her of sh oplifting (such as prior bad relations,

outstan ding debt, or the like) , nor di d she h ave other inform atio n such as Kroger ’ s withh olding exculp a tory evidence or Kroger employees ’ collaborat ing to gin up a
story before going to the manage r wi th their accus ation

. S uberu , 216 S.W.3d at 795

. In a contrast ing case wit h the opp osite result , home owner s who ha d their
b uild er criminally charged with misa p p ropriating construc tion

- loan proceeds were found to have lac ked probable cause based on othe r inf o rmation tha t the jury could
have credited

. San Antonio Credit Union v. O ’ C

onnor , 115 S.W.3d 82, 88

– 90, 94

– 95 (Te x . App.

— San An tonio 2003, pet. denied) (op. on reh ’ g) ( noti n g that ju r y could have
found that hom eowners acted unreasonab ly based on evidence that they k new t h at23 money w a s “ tied up in ‘ retainage, ’ tha t the lumber bill was unpaid, n ot because [ builder] st ole the money, bu t because of a theft from the construction s i t e, and t h at the costs associated with the [homeowner

- request ed] ‘ extras ’ were consuming mone y tha t should h ave been used to pay for the ori ginally agreed upon bid ” ) ; see al so Tranum v. Broadway , 28 3 S.W.3d 4 03 , 415

– 16 (Tex. App.

— Waco 2008 , pet s . denied) ( h o lding

t h at presumption was rebutt ed by evidence that defenda nt “ possessed a private
motive t o har m ” plainti ff) ; Thrift v. Hubbard , 974 S.W. 2d 70, 78

– 80 (Tex. App.

— San
Ant on io 1998, pet. denied) ( wh ere disgru nt led investor initiated criminal complaint

acc u s ing pla i ntiff s of misapplication of funds and theft, affirmi ng that probable cause
did not e xist b ecause jury could reasonably have found t hat investor knew age of

accoun ts receivable he claime d to have been d eceived about; that he deposited a loan

repay m e nt chec k knowing it would bounce ; that his criminal complain t misrepresented the source of t h os e r epayment funds ; and that he knew that pla intiff s had legitimate business p urposes for using rec eiva ble s he cl aimed they stole )

. Thrift a lso illustrates the a p propria t e ly modest role for an appellate court
revie wing pr obable cause : even though the reviewin g c ourt found “ co mpelling ” the
investor ’ s testimon y that he had a good

- fai th beli ef that his in vestment was s tolen , it recognized that the evidence also fai rl y suppor t ed a finding that he was a

“ disappointed investor w ho gam bled and lost on a fledgling com pan y . ” 974 S.W.2d at
79

– 80 ( “ I t is reasonable to i nte rpret the evidence in this case as proving that T hrift
f iled his c riminal complain t against the Hubbard s, k nowing it was specious, in an24 attempt to avenge his lost i nvestment or to gain an advantage in t he civil l itigation stemming from these same facts

. ” ). Here, evidence abo unded not only that B earden posses s ed a pr ivate motive to
harm Leclair but also th at she pos s essed other information from which the jury could
f ind that wh en she went to the DA and t he grand j ury , she did not honestly and reasonably believe that Leclair ha d stolen $18,500 from her :

• Bearden was publicly upset with Leclair over the NRBC a nd was hur t (if not made irate) by his suggestion that s he mig ht need to seek another t rainer;

• Shor t ly after, she reach ed out to Dugan and agreed to be his secret “ trump car d ” in his efforts to ex tract favor a ble terms from Leclair in their partnership dis put e ;

• Beard e n did not start demanding papers from Leclair u nt il th at point , a lthough she had had po ss ession and had been pa ying Surge ’ s bi lls for months ;

• Because Surge was too young to sho w, Bearde n was unco ncerned about not getting papers until l ater , after L &D issu e s were resolved ;

• Bearden knew all along that Du gan owned the horse;

• Bearden ent husia stica lly emb raced a plan t o thre aten criminal prosecution as leverage for Dugan ;

• Con trary to w hat she told the grand jury, Dugan did not want Sur ge back , and
s he d i d not t e ll the grand jury that Leclair had offer ed to return her money ;

• Bear den knew that Leclair a nd Dugan were involved in a partnership dispute whe re eac h claimed that the other owed him money, and she didn ’ t know who m to believe;

• Bea rden knew of AQHA ’ s proces s to obtain papers when a seller is uncooperative but ne ver init iate d that proc ess ; and25 • Be arden told Johnson about her deal with Dugan t hat she coul d have Surge but that Dugan was go ing to hold the papers until his dispute with L ecla ir was over . T h e j ury h e ard plenty of e vidence

— which it found credible

— that m ade the probab le

c ause presumption v anish.
2. Bearden did not conclusi ve ly est ablish her p robable cause. B earden next argues that even if Lecla ir produced ev idence that rebutted the presumpti o n , she c onclusively pro ved her probable cause as a matter o f law. Again,

we disagree

. Bearden pos its two crimes that she reasonably be lieved Leclair committed :

“ theft by taking the purchase money she paid for Electric Su rge and failing to provide
her with the hor s e ’ s r egistrati on papers ” and “ theft, b ased on the fa ct that Leclair sold
her Electric Sur ge without Dugan ’ s pe rm ission

. ”
B o th sides a gree that probable cause is measured against “ the c rime for which [the plaintiff] was prosecuted. ” Richey , 95 2 S.W

. 2d at 5 1 7. As opposed to Beard en ’ s appellate f raming of Leclair ’ s alleged acts of theft , the gran d jury in dicted Leclair for
steali ng Bearden ’ s mon ey , with the implication that she got nothing in ret urn . 19 S he
told the gr and jury that :

• s he pu rchased the ho r se fr om Leclair on Janu ary 2, 2012 fo r $18,500;

19 B ased o n tria l testimony that, wit hout papers , Surge was wo rth on ly $300 to $500, Bearden tells us tha t she be lie v ed she “ r eceived practically nothing in return. ” [ Emphasi s ad ded .] But she said nothing to the grand jury abou t any diminished v alue.26 • s he learned in April or “ arou nd the fi rst part of Ma y ” tha t the horse was not L eclair ’ s to sell ;

• s he had a conversation with t he “ actual owner

- of

- record , ” who told her that he had never given Leclair author i t

y to se ll the horse;

• Leclair knew that Dugan owned the horse;

• s he had a text message reveal ing th at “ Lecla ir knew that D ugan had never given him permiss ion to sell the horse ” ;

• Leclair sold Bearden a horse that didn ’ t belo ng to h im, and he recei ved money f

o r it;

• s h e was paying the bil ls on t he hor se, but Dugan still ow ned th e horse “ as far as the title goes ” ; and

• Dugan want ed his horse back. Setting as ide the disingenu ousness of many of th es e stateme nts

— and Johnson ’ s testimony that what Bearden swore to the gran d j u ry was “ inconsistent ”
with what she h ad told him

— Bearden knew much more that she did not tell the gr and jury : Bearden was Du gan ’ s “ trum p card ” in his cam paign to get th e most out of L&D
and Leclair ; Leclair had reminded Bearden that Dugan kne w tha t Surge “ was being sold to go toward s his bill I told yo u that ” ; Dugan was going to hol d Surge ’ s p apers until he and Leclair sett led up , at which point Beard en would g et them ; and Bearden
knew that she could always go through t h e AQHA to get the papers eve n if Dug a n or Leclai r neve r coo p erate d

. In short, Bearden k new that she paid $18 ,500 f or a horse a nd that her ownership was neve r in doubt . That alone show s lack of p robabl e cause to accuse27 Leclair of felony theft of money , although there ’ s somethi ng even m ore fun d am en tal : B earden did not tell the grand jury that Leclair had offered her mon ey back, a n offer
that would sur ely torped o an y honest and reasonable person ’ s b elief that a theft had
been committed

. A s for Leclair ’ s a lleged crim e of s elling a horse w i thout D u gan ’ s perm ission

— which strikes us as something Dugan would prosecute

— the jury had ampl e e vidence
that Bearden did not h onestly and reasonably believe that ei ther

. Even if Lecl air had
f louted Dugan ’ s request to hold up on com pleting and deposit ing t he fund s from Surg e ’ s sa le until they agreed on other partner ship matters , Bearden kn ew that Duga n never asked h er for the hors e back and knew that from every indica tion he was perf e ctly happy th at she had been paying insurance an d expense s since January

. A jury

c ould reaso nably believe that Dugan ’ s real beef with Leclair was whether Duga n should have gotten the $1 8,500 so that he could pay off the credit card he ’ d us ed to buy Surge versus Leclair ’ s giving Dugan an invoice credit , wh ich did n ’ t help the cas h

strapp e d Dugan

. A n d a rational jury could have found that the “ authori z ation ” issue
surfaced as a con v enient pressure point on ly after Bearden became a gitated with
Leclair in April and only after bot h Dugan and Bearden

— for differen t reaso ns

— seized upon a joint o p portunity to ge t at Leclair

. Rather than acknowledging the evidence that was pro perly bef ore t he jury,
which in a no

- ev idence review we are bound to credit , see , e.g . , Gu nn , 554 S.W.3d a t 658, Bearden points to Leclair ’ s ost ensibl e trial admission of his t heft as co nclus ive28 proof of her probable cause , relying on First Valley Bank of Los Fresn os v. Martin , 144 S.W.3d 466 ( Tex. 2004). There, a secured lender ha d compla ined to the
authorities

— “ w hich it had every right to do ”

— th at it c ould not locate e ither i t s debtor o r mos t of the collateral cattle , alth ough the in formation the lend er provided

w as in accurate and incomplete i n certain respects. Id. at 468

– 70

. T he distric t attorney indicted Martin for a different crime: se lling o ther ca ttle and keeping the pro c eeds , i d.
at 46 9 ; “ nothing the Bank reported or failed to report caused the indic tment re latin g to M artin ’ s cattle sale , ” id. at 472. Martin was arrested, bu t the ch arges were ultimately dropped. Id. Reversing judgment for M artin o n his maliciou s

- p rosecut i on claim, the

s upreme court noted that , at trial, Mart in had admitted all th e objective e lemen ts of
the crime for which he was indicted and thus could not es tablish lack of probable

cause . Id. a t 470. A ny erro rs on the lende r ’ s par t were therefore immater i al. Id. 20
Beard en urge s that Lec lair himself , l ike Martin, conclusively esta blished her
pr obab le cause by admitting at trial all the elements of theft : acqui ring or exercising
control over pro perty ( “ appropriating ” property) withou t the owner ’ s eff e ctive

c o nsent ( “ u nlawf ully ” ) and with the intent to de prive the owner of the proper ty
. See
Tex. P enal Code Ann. § 31.03(a), (b )(1). She points to Lec lair ’ s acknowledging that he

20 The supreme c ourt also observed that “ [n]o credit system in the wo rld can last long if creditors ar e p unished for lawfully deman ding their money back, ” First Valley Bank of Los Fresnos , 144 S.W.3d at 4 68, as if to suggest th at secu red le nde rs have some sort of automati c “ super presumption ” of probable c ause . The s i tuatio n at ha nd is much different.29 deposit ed her checks int o his bank acc ount ( thus “ appropriat ing ” her mone y ) , t hat he

s pent the money to pa y personal debts , that Dugan had told him the day before h e deposited the che cks to hold up on completing the sale and depositing monies , and
that Lecl air ignore d Dugan , deposit ing and spen ding the money anyway. Bearden also

re f ers us t o Leclair ’ s affirmative answer to an “ if

– then ” question : “ [I]f Dr. Dugan told
Ms. Bearden that you did n ot have au thority to sell Electric Su r g e, t hen she had every right in the world to file a crimi nal charge ag ainst you; isn ’ t t hat true? ” 21
B ut B e arden ’ s position presents a cramped r eading of Mart in that fails to take
into account the fa cts o n the ground h ere . Based on the evidence before i t, a reasonable jury could have believed that Bearden and Leclair had entered a verb al

contract in December 2 0 11 . Bea r den had given Leclair two pos t

- dated checks in
December , to allow her time to move funds around before January 2 and January 4 , the dates of t he checks . Sh e applied for insurance to be effective January 1, 2012 and represented that as the sale dat e , with D ugan as the seller

. She st art ed paying Surge ’ s expenses to LPH in January 2012 , and Dugan stopped. She wasn ’ t concerned about

21 Th is q uestion came during a lengthy cross

- ex amination about Le clair ’ s deposition testimony from ov er four years earlier

. Hi s Sept ember 2 01 4 deposition took place before Be arden ’ s gra nd

- jury testimony was ordered disclos e d and before Lecl air learned that she had complain ed ab out a theft of money , not papers
. Leclair al so did n ot know, when he was de posed, that B earden was the only grand

- jury
w

itness and was the only one calling him “ a liar and a thief ” on social media; n o r did h e know the particulars of the “ trump deal ” b etween Bearden and Dug an , all of wh ich later

- re vealed information was reitera ted on redirect to put m atters in cont ext
. We do not consider his “ admiss ion ” to be quite the “ gotcha ” statement that Be arden pr o poses
.30 the papers b ecau se Surge wasn ’ t old enough to show. She and Dugan saw each ot he r often at Lecl air ’ s facility, and nothing hinted t hat Dug a n didn ’ t consider the horse to

now be Bearden ’ s . Dugan said nothing to Bearden fo r four months about having
retracted his authoriz atio n

— assuming that was even possible on January 3 when he
asked Le clair , who cons idered the deal completed i n Decemb e r , to h o ld up on it

. 22 Everyon e acted as if the sale was co mplete by January 1, 2012 , and it ’ s undispute d that Dugan never asked for the ho rse back

. Bearden had four months ’ knowledge of all these facts be fore she and Du gan be gan collaborati ng and b efore D u gan tol d her that Leclair al legedly wasn ’ t authorized
to sell Surge. It ’ s t rue that a com plainant does not have a dut y to make inquiry if a

c rime see ms reasonably to have been committed, see Sube ru , 216 S. W.3d at 79 4, but by the same token, a com p l ainan t c annot ignore her own “ lived experience ” of events
. By urging us to examine only the bark and maybe a f ew leaves on one tree in a vast for est , Bearden would have us ignore th e many other tre es sw aying al l around vying
for evidentiary attention

. Be a r den d id not conclusively prove her p robable cause as a matter of law

.

22 As Le clair pu t it at oral argument, Dugan ’ s text didn ’ t create a “ time mac hine ” to re voke authority for a sale that had already occurred ; j ust because Dugan wanted to negotiate L&D ’ s dissolution differently after T opper died did no t make Leclair ’ s actio n s retro ac tively criminal.31 3. Fac tual sufficiency on lac k of pro ba bl e cause Bearden ’ s first issue is fram ed as involving “ no evi d en ce and/or factually
insuffi cient ev idence, ” but her briefing c ente r ed on legal s u fficie nc y . Although
Bearden concluded her discussion with one sentence th at “ [a]lternatively ” men tioned
factua l in s ufficiency , she did not brief it

. Be cause he r treatment was “ curs ory , ” we will similarly “ follo w [Bearden ’ s] lead in the d epth of detail we g ive to i t. ” Durant v.
Anderson , No. 02

- 14

- 00283

- CV, 2020 WL 129 5058 , at *10 (Tex. App.

— Fort Wo rth
Mar. 19 , 2020, pet. denied) (me m. op. on remand)

. B u t see Gil lespie v. Nat ’ l Collegiate
Student Loan Tr. 2005

- 3 , No . 02

- 16

- 00124

- CV , 2017 WL 28 06780, at *2 ( T ex. Ap p.

— For t Worth June 29, 2017, no pet.) (mem. op.) ( d ec lining altog ether to address fact u a l

s u fficiency claim raised o nly “ in passing ” ).
Bearden did offer evidence that competed agains t Leclair ’ s ; she testified that
she had believed Dugan whe n he told her th at he had not authorized Lecl ai r to sell Surge and that Leclair ha d no t paid over the proce eds to Dugan , meaning t hat Dugan
was hol ding the papers

— which she said w er e ultima te ly Leclair ’ s responsibility to obtain

— until Leclair paid him

. Leclair ’ s co u nterva il ing eviden ce , which w e have
d etailed at length , was fact uall y s ufficient to support the j ury ’ s f ind ing that Bearden
lacke d probable cause. We consider all the eviden ce in a factual

- sufficiency review but give weight to the jury ’ s determination of w itness c re dib ility

. Durant , 2 020 WL 1295 058, at *1 1 (citing case s). The evidence that Le clair int roduced wa s

“ not so weak that it was not worthy of belief. ” Id. Viewi ng the record as a whole, the32 evidence suppor ting the jury ’ s no

- probable

- cause finding wa s not s o again st the great wei ght of the evidence t hat upholding it w ould be manifestly unju st. Se e Ca in , 70 9 S.W. 2d at 176.
We ov errule Bearden ’ s fir st issue.
V I I. De famatio n The jury found that Bearden publish ed def amatory statements acc using Leclair
of engagi ng in th eft, misappropr iating client property, and being d i sho nest in his business dealings

. It also found tha t Bearden knew or should have know n, in t he exercise of ordinary care, that the state ments it found defamatory w ere false and had the po ten t ial to b e def amatory. See D Mag. Partne rs , L.P. v . Rosenthal , 529 S.W .3d 429, 434 ( Tex. 2017) (laying o ut defa mation elements)

. In the damages question, t he jury
was instructed that statements that Lec lair “ was dishonest in his business practic es or engaged in c ri mi nal conduct are defamatory per se. ” Bearden challenges the “ knew or should have known ” fact or of a de famation
claim , arguing that she c onclusi vely proved that she took reaso nable steps to verify the accuracy of her statement s before publishing the m an d t hus was not n egligen t
. In
he r re ply brief, she add s that he r statement that Leclair “ was abso lu tely told NOT to sell by the owner and his busi ness partner ” was not a false sta t ement “ as a matter of
law

. ” 23

23 Bearden raised th is argument for the f irst time i n her reply brief , i n response to Leclair ’ s briefi ng that she not only shou ld have known but did know that her33 T his was the Facebook question Bearden arranged fo r on M ay 2 4, 2012 :

After a numbe r of people responded , Bearden wei gh e d in :

statements wer e false. Bearden ’ s opening brie f head ed her I ssu e T wo d iscu ssi on thusly: “ There is no evi dence an d / or factually insufficient evi dence that Bearden knew or should have known that her allegedly defamatory statements were fals e. ” Although the q uestion is a close one whether we sho uld consider her late

- brie f ed arg ument , in the interest of t h oroughness we w i ll do so. Cf. Prescr iption Health Network, LLC v. Ad ams , 02

- 15

- 00279

- CV , 2017 WL 1416875, at *7 (Tex. App.

— Fort Worth Apr

. 20, 2017, pet. de nied) (mem. op.) (declining to i nterpr et issue complaining that
a rbitrat or “ ex ceeded its authority ” as fairly inclu ding reply arg u ment that arbitrator did not issue a “ reasoned award ” ).34 A. F alsity versus subst ant ial truth (reply

- brief argument )
Bearden ’ s reply brief argues that the “ a bsolutely told NOT to sell ” part of her
post w a s true , or at least substantially so. See KBMT Operat ing Co., LLC v. Toledo , 492 S.W.3d 710, 714 (Tex. 2016) (holding that a statement need not be “ perfectly t rue; as long as it is substantially true, it is no t fal se ” ). But beyond o ur disagreem ent with
th a t proposition based on all the facts we have already discussed , and beyond the fact35 that her post (s) said more than that one thing , it w as Bearden ’ s bur den to raise and
prove substantial truth as an affirmativ e defense

. Although public fi g ures and privat e p laintiffs suing media defend ants on matters of publ ic con ce rn must prove falsity, 24 see Brady v. Klentzman , 515 S.W.3d 878, 883 (Tex. 2017) ; Bentley v. Bunton , 94 S.W.3 d 561, 586 (Tex. 20 02) , at common law a presumption of falsity exists, maki ng i t a def e nd ant ’ s burden to prove otherwise

. Randall ’ s Food M kts. , Inc. v. Johnson , 891 S.W

. 2d 640, 646 (Te x . 1995) ( “ In suits brought by private individuals, truth is an affirmative defense to slander. ” (footnote omitted) ) ; Van Der Linde n v. Khan , 535 S.W.3d 179, 1 9 8

– 9 9 , 199 n .10 (Tex. App

— Fort Worth
2017 , pet. denied) ( recognizing trut h as affirmat ive defense in defamation actions involving private individuals where n o constitutional issue s are implicated ) ; see also Knox v. Taylor , 992 S.W. 2d 40 , 53

– 54 (Te x. App.

— H ou s ton [14 t h Dist.] 1 999, no pet.) ( rejecting defendant

– appellant ’ s argum ent that ju ry ’ s negative an swer to question on
subst anti al truth was against great w eight and preponderanc e of evidence). Jury Question 1 1 embed ded th e fa ls ity presumption , asking wh et h er Bea rd en knew or should have known that her statements “ were false , ” the only predicates be ing questions on publication and defamatory meaning

. B earden did not propose a
pr eliminary question and instruc ti on ask ing the jury to assess falsit y

— a ne cessar y f inding if it was Lecla ir ’ s burden

— nor did she object to its absence

. See Comm. o n

24 From o ur review of the record , Bearden d id not contend that Le clair w as a public figure

.36 Patte rn Jury Ch arges, State Bar of Tex., Texa s Pattern Jury Ch ar ges: Business, Consumer,
Insurance & Employment PJC 110. 4 & cmt. (201 8) ( recommending pattern que stion on
f

al s ity that “ should be used when the plaintiff is required to establish th at the publicat ion is fals e ” ). Nor did Bearden ask for a question on sub st antial truth , an affirmative defens e she would have had to prove
. See id

. PJC 11 0. 8 & cm t. ( setting out
ques ti o n on substantial truth to “ be submitted only in cases when th e common

- law
p resumption of falsity applies; in such cases su bstantial tru th is an affirmative
defense ” ). If, a s Bearden asserted in her r eply brief, s he “ has always mainta ined the
post was no t f alse, ” we would expect to find pleading s, requested i nstructions and questions , or charge objecti ons so maintaini ng , but we have not

. 25
When it come s to substantial truth , then, at this point we think the horse is out
of the barn , and we reject Bearden ’ s a r gument on this defens ive matter

. B
. K new or should have known Bearden argues that the evide nce conclusively pr oved that she lacked the requisite st ate of mind for defamation liability because she pu blished on ly “ what [she]
knew at the time to be true ” a nd because she took reasonable steps to veri fy the truth before publishing her Facebook comments

. A s with her narrow disc us sion of the probable

- cause evidence , a step back shows that t h ese a rguments, particularly when

25 Even Bearden ’ s op ening brief referred to “ th e undis puted facts , as Bearden und erstood them , we re that Leclai r had indeed sold her Electric Surge w ithout Du gan ’ s permission. ” [ Emphasis added .]37 consider ing the timing and content of her Facebook comments as a whole , lack
conclusive supporting evidence

. The ap plicable level of f ault in this case is neg li gence. In re Lipsky , 460 S.W.3d 579, 593 (Tex. 2015) (orig. proceeding) (noting that although a public figure or offic ial

must pro ve actual mal ice, “ [a ] priv ate ind ividual need o nly prove negli ge nce ” ) ; Bedford v. Spassoff , 485 S.W .3d 641, 648 (Tex. App.

— Fort Worth 2016), r ev ’ d in part on other grounds , 520 S.W.3d 901 (Tex. 20 17) . A pl aintiff such as Leclair must prove that (1) th e de fe ndant knew or shoul d have known that the state ment w a s fals e and (2) the publication ’ s content wou ld warn a reasonabl y prudent person of it s de famatory potential

. See Foster v. Laredo Newspapers, Inc. , 54 1 S.W.2d 809, 819

– 20 (Tex. 1976). Negligence i n th is context also asks w hether the d efendant acted reasonably in checking the truth of the communicati on befor e publishin g it. Scrip ps Tex. Newsp ap ers, L.P. v. Belalcazar , 99 S.W.3d 829, 837 (Tex. App.

— Corpus Christi

– Edin b urg 2003, pet. denied); see also New sp aper Holdings, Inc. v. Crazy Hot el Assisted Li ving, Ltd. , 416 S.W.3d 71, 85

– 86 ( Tex. App.

— Houston [1 st Dis t. ] 2013, p et. denied) (holding no

ev idence of negligence whe re reporter cited multip le consis tent sources and plai ntiff did not return messages ask in g for comment).
Ba s ed on the sa me fact s we la id out above in Section VI.B. i n analyzing
pro bable cause , t he jury cou ld have reasonably found t hat the one

– two punch of
Bearden ’ s Facebook post was defamato ry because she knew it was false , as opposed t o he r not t aking reasonab l e steps to c onfirm its acc uracy ( “ should have known ” )

. But38 even if we foll ow Bearden ’ s lead and f ocus on her assertion th at “ the evidence conclusively establishes that Bearden took rea sonable steps to verify [her post] before
she publ is hed it on Facebook, ” we are not persuaded.
Bearden maintains that “ [b]ecause D ugan (among others ) told [her] that Le clair
did n ot have permission to sell Electric Surge, and further becaus e Leclair, when confronted, did not deny it, B earden exercised re as onable care befor e p ublishing t he May 24, 2012 Facebook post as a matter of law

. ” The confron tation to which Be ar den refers is the May 8 text exchange we quoted in Section II .F. and reproduce below

. It
started with her d emand for papers by that Wednesday :

Contrary to Beard e n ’ s contentio n that in response to that last t ext Leclair did not deny selling Su rg e without perm ission , the entirety of his same

- day reply , bel ow, corroborates that (1) th e sale took place on January 1 and (2) he and Dugan had39 agreed t o apply the proceed s to Dugan ’ s LPH bill , so mething that carries w ith it at the
very least an implici t denial of an u nauthorized sale :

When we consider the evidence of Bearden ’ s not demanding papers until May , her secret deal to work wi th Dugan , and th e pleasure she took n o t only in contemplat ing but in attem pt ing to orche strate Leclair ’ s down fa ll, her argument that
Le clair ’ s alleged non den ial meant that she had satisfied her duty of reasonable care as a matter of law is unconvincing. T h e jury heard te s ti mony about the cont e xt of
Bearden ’ s demands and cou ld re asonably have concluded that she wa s not acting in good faith but was instead trying to fo rce Le cl air into a better deal for Dugan or to set him up for the criminal charge s that soon followed

. Rega r dl ess, her text s with Leclair did not conclusively establi sh her reas onable care as a matter of law. 26
We overrule Beard en ’ s second issue.

26 As with probable cau se, Bear den ’ s argument on defamation ends with a throw

- away line about factual ins u ffic i ency , which w e reje ct for the same reasons mentio n ed in Section VI. B. 3

. The jury ’ s findin g was not against the overwhelming weight of the evidence

.40 VIII. Damages
Bea rden ’ s thir d issue attacks the reputation and mental

- anguish damages on legal

- suffic iency grounds or

— i f need be

— as excess i ve and warranting a suggestion of

re mittitur ; her fourth and final issu e concerning exemplary dam ages comes into play

on ly if her thir d issue succeeds. A lthough Bearden again menti ons fac tu al sufficiency in passing , she does not analy ze it and focuses ent i rely on legal suffici ency . “These extraordinary damage a wa rds must be reversed in their entirety because there is no

ev idence that Leclair suffered anything close to compensab le injury under an y damage

m easure. . . . At most, the evid en ce supporting the a w ards is factu ally ins ufficient. ”
Bearden ’ s discussion went on to evaluate only legal sufficiency for bot h types of damages

. We will do likewise, looki ng only to se e if more than a scintill a of evidence supports the jury ’s assessment t ha t Leclair is entitl e d to c ompensation. See , e.g. , Sw. Energy Pr od. Co. v. Berry

– Helfand , 491 S.W.3d 699, 713 (Tex. 20 16 ) (ap plying usual no

evi dence test to damages chall enge). More than a scintilla exists. N onetheless, we
would find the evidence factual ly suffic ient if call e d upon to weigh it under that
standard.
We keep in mind that n on economic damages co mpensate for n on eco n omic
harm and “ ar e not amen able to calculation with ‘ precise mathematical pr eci sion. ’ ”
Anderson , 550 S.W.3d at 618 (quoting Brady , 51 5 S .W

. 3 d at 887 ).41 A. Legally sufficient evidence
1
. Reputation al ha rm Reputation damage s are av ailable for claims of malicious prosec ution and
defamation , see i d. a t 621, and the legal sta nd ards for recovering reputation dama ge s for both claims are th e same, see Rest at ement (Second) of T orts § 670 cmt. A (1977). Generally speaking, two type s of evidence can support a n a ward of reputation damages: direct evidence that “ people within the commun ity ‘ thought less of ’ the plaintiff , ” and “ evidence of a lost j ob or business opportunity

. ” Mem ’ l Hermann Health Sy s. v. Gomez , No. 19

- 0872, 202 2 WL 119 4374, at * 9 (Tex. Apr

. 22, 2022) (citing Brady , 515 S.W.3d at 887, and Anderson , 550 S.W.3d at 622

– 23 , r e s p e c t i v e l y )

. M ore t ha n a scintilla of evidence exis t s that Le clair ’ s reputation su ffered as a result of his wrongful indictment and Bearden ’ s defamat ion

. Johnson test ified that
Leclair had a good professional reputation that was on the rise immediately before the events in q ue stion and that Johnson , a comp e titor i n the training business , would e ven seek Leclair ’ s help with his own clients

. But a fter th e indic tment, Johnson was
reluctant to suggest tha t any of his clients b uy a horse from Leclair , saying tha t “ it ’ s hard

. . . f or you to tell a client it ’ s a g ood ide a, l et ’ s go down there and buy a horse,
and

. . . possibly be [in] the same situation

. ” 27 J ohnson observed that Leclair had fewer

27 T rainers often also broker bu ying and selling horses

. A n accusation of horse thef t would be self

- evi dently da magi ng to a t rainer ’ s reputation , and Lecla ir test ified directly that being accused of horse thievery would “ be detrimental to a horse train er. ”42 horse s to show at competi tions after the indictment , s omething that Mike Seay also
witnessed

. 28 Joh nson “ felt you needed to dist an ce yourself from

- - from [Leclair ] with everything that wa s going on. It was not

- - it w as not good in the public eye

. ”
Le clair noticed a difference in how p eo pl e reacted to him at horse shows , as well as exp eriencing a sharp drop

- off in the sum m er of 2 0 1 2 in the number of horses
clients wer e sending him for training, down from a ro und 3 0 to roughly 15. Although
Leclair went on to win an i mpressive amount of prize money that offset his decreased
boa rding and training revenues, after the indic tment h is gro ss income experienced a

“ significant drop ” on the order of around $300,000 in 2012 , and it took him “ a couple of year s ” t o build it back up. Leclair tes tified that “ t he indictmen t was the reason ” for
that decrease

. As Anderson instructs, reputat ion damages c an be shown by a lost jo b or business opportunity. 550 S .W.3d at 622. Leclair also conne cted the f act of people staying away from him at horse shows to finding out that Bearden was posting things
on social media

. Although Bearden con tends that L e clair n ee ded to present a witness who had read the Facebook p ost or who didn ’ t do or stopped doi n g business with him because
of the indictment , Texas law does not require such specific proof for proving general

28 Bearden a rgues that Seay ’ s testimony about Lecl air ’ s having fewer customers to haul during this period prov e d on ly that Lec lair was ha ving staff ing issues. But when asked why Leclair was hauling only on e non professional client and was need ing Sea y for help at one particular show, Seay a ttributed it to both scenarios: “ He didn ’ t have the customers to haul and he didn ’ t have th e help

. ”43 non economic harm

. For example, Brady was a d e famatio n action brought by the son
of a chief sherif f’ s deputy against a reporter a nd newspaper f or a n article portray ing Brady as un ruly and in to xicated when pulled over and suggest ing that he was a criminal who used his father ’ s connections to skirt the charges a gainst him.
515 S.W.3d at 881

– 82. Aff irming the court of appeals ’ remand f or a new trial , the supreme court disagreed with the media de fendants ’ argument for rendition on grounds that there had been legally insufficient evidence at trial of reput a tional ha rm . Id. at 886

– 88. The supreme court noted that “ there mu st be evidence th at people
beli eved the statements and the plaintiff ’ s reputat ion was actually affected .” I d. at
887 ( citing Bur bage v. Burbage , 447 S.W.3d 249, 2 61

– 62 (Tex. 2014)). And Bra d y prese nt ed such e vidence : One witness described the plaintiff as having a reputa ti on for being a “good kid” before the article was published. T he plaintiff ’ s father testified that after the article, he met “people in the community that had a negative imp r ession” o f him. Th at some people thought less of the plaintiff after the article wa s published wa s direct proof of injury to the plaintiff ’ s rep utation

. Anderson , 550 S.W.3d at 621

– 22 ( summ ar izing the evidence in Brady ) (cleane d up)

. In Anderson , the sup r eme cou rt held th at the plaintiff presented m ore than a
scin t illa of evidence th at kickback alleg ations damaged his reputation whe re a prospect ive employer, Hiley, testified that Anderson h ad had a “ really good reputation ,” but after hearing the allegatio n s, Hile y would not consider hiring him for

an y position unless Anderson cleared hi s name. Id. at 622

– 23. That evidence was “ not44 merely hypothet ical or speculative, but directly reflect [ed] Hiley ’ s opinion about
Anderson ’ s chara cter. ” Id. at 623. “ Conclusi v e proof ” of a lost o pportunity is not require d, “ but rather a reasonable in feren ce that Anderson ’ s reputation changed for
the worse. This evide nce is enough to cross the legal

- su fficiency t hreshold regarding
the exist ence of re putation damages. ” Id. Here, Johnson ’ s testimony was comparable
in his exp ressed reluctance to send business Le clair ’ s way in the wake of the
indictment

. We hold that ther e is some evidence , as in Brady and Anderson , that Lecl air
suffered reputational har m. 2
. M ental a nguish
Bear d en next a rgues that the evidence is legally i ns ufficient to support an y mental

- a nguish damages

. T o support such an award , the evidence must show both the existence of compens able mental anguish and justification for the amo unt awarded.
Emerson Elec . Co. v

. Johnso n , 601 S.W.3d 813, 840 (Tex. App.

— Fort Worth 2018) (citing Hancock v. Variyam , 400 S.W.3d 59, 68 (Tex. 201 3)) , aff ’d on other grounds , 627 S

. W.3d 197 (Tex. 2021 )

. The record must provi de either di rect evidence of the nature, duration, and s everity of a pla in tiff ’s menta l anguish , thus establishing a subs tantial disruption in his daily routine, or evidence of a hig h degree of mental pain and distress
that exceed s mere worry, anxiety, vexation, embar rassment, o r anger. Ande rson , 550 S.W.3d at 618

– 19 (citing P ar

kway Co. v. Woodruff , 90 1 S.W.2d 434, 444 (Tex.
19 95))

.45 A l though corroborating evidence of mental anguish , including from a spouse
or friend , can be helpfu l in determining evidentiary sufficien cy, a plaintiff ’s testimony
alone can suffic e . See id. at 619

– 2 0 (contrasting Bentle y , 94 S.W.3d at 576 ( c orroborat in g testimony from wife and a friend ) , with Serv. Corp. Int ’l v. Guerra , 348 S.W.3d 221 , 233 (Tex. 2 011) ( testimony only from plaintiff ) ) ; see a l so Gordon v.
Redels perger , No . 02

- 17

- 00461

- CV, 2019 WL 61 91 86, a t * 2 (Tex . App.

— Fort Worth
F eb. 1 4, 2019, no pet.) (mem. op.) ( affirming award for past physical pain and men tal anguish where only testimony was f rom plainti ff and wife about “ the impact and consequences of the a ssault ” )

. Here, t he jury heard evid en ce of mental anguish from Leclair him s elf and from
S eay, a p astor who ministered at and himself participated in ho rse shows and
inter acted w ith Leclair both before and after his arrest , thus enabl i ng hi m to observe
Leclair ’ s differing st ate s of mind.
Lec la ir testi fied that in the weeks after h is indictment and arrest , he experienced dry heavin g, diarrhea, “ involuntary muscle twitc hes ” that scared him “ to death, ” sleeplessness, and anx iety so intens e tha t he sought m edical help. 29 While the criminal

case wa s still pending, Leclair ’ s young er broth er died, and Leclair felt unable to talk with his grieving parents about what had happened to him , keeping it to himself and feeling “ numb. ” Lecl air saw a cou n selor for over a year, became close with Seay,

29 A doctor prescribed medication, w hich Leclair took only once because its side effects reduced the reaction t ime he needed

.46 described hi mself as an emo tio nal “ wreck, ” and eve n contemplated suicid e

— a tho ught he pushed aside bec ause he knew i t would further devastate his parents. 30
Leclair felt isolated and reclusive : “ y ou can always tel l when you go to a horse show and you ’ re around everyb od y, an d when you ’ re walking by and you kind of see

som eone look at you, and then you can tel l when they ’ re talking about you. ” A l though Leclair was going thr o ugh a divorce and experienc ing oth er st r essors during this period, he characterized his indictm en t and arrest as “ significantly more trau matic ” to his emotions , subst antia lly disrupting his daily routine and causing him a high deg ree of mental p a i n and stress that he had never be fore experienc e d

. We view this testimony as substant ively similar to the An derson plaintiff ’ s (uncor roborated)

te stimony , whic h was held l egally sufficient

. Anderson , 550 S.W.3d at 620 ( discussing plaintiff ’ s tes t imony about changed demeanor, trou ble sleeping, and treatm e nt for anxiety and depression after being accused of taki ng kickbacks ).
As for Seay , befo re the a rrest he had heard of Lec lair ’ s impending divorce and
reached out , as a casual acquain tance, to off er his help (which Leclair did not take him up on) and beca m e better acquainted with Le clair in the weeks leading up to the

arrest. An “ extremely emotional ” Lecl air called Seay right after he bonded out of jail

. Lec lair ’ s “ voice was cracking and breaking, ” a nd during their almost

- hour

- long
conversation , he talked t o S eay about his “ n ightmare ” experience. S eay followed up

30 When deposed, Lec lair did not mention suicidal ideat ion as a manifestation of his mental anguish.47 b y calling Leclair the next day and the reafter would counsel him about “ his fe ar [] , his
d epression ” several times a week. After Leclair brought up the thought of suicide,
S eay began calling daily t o check on his welfare , and if Leclair was un reachable , Se ay would call two other people at Leclai r ’ s barn and ask how Lecla ir was doin g . During this time, Le clair expresse d to Seay that he felt “ no hope ”

— “ his business was gone

. He felt that his reputation was ruined

. ”
This testimony is some ev idence of compensa bl e mental anguish resulting from
malici ous prosecution and is certainly not “ so contrary t o the overwhelming weight of all the evidence, t hat the finding should be set aside and a new trial ordered

. ” Durant , 2020 WL 129 5058 , at * 8.
B. A mount of damages
Fo r past reputation al harm, t he jury awa rded Leclair $15 0,000 for the maliciou s
pro secution and $50,000 for Bearden ’s defamation. For malicious prosecution, the jury also awarded $50 0,000 for Leclai r ’ s past mental anguis h, reduced to $485,000 in the judgme nt
. Bearden assails the se amounts as “ ex or bitantly exce ssive. ”
We review a n excessiveness challenge for factual sufficiency , something that is committed to our exclusive jur isdiction , Anderson , 550 S .W.3d at 620 , and that is

“ highly deferential to the jury ’ s findings, ” Gordon , 2019 WL 619186, at *4. W ith “ few specific guidep osts to follow, ” our task is “ e ven less certain when reviewin g the factual sufficiency of nonpecuni ary damages , ” i d. , and the “ d i scretio nary natu re of [no neconomic

- damage] awards

. . . d ul ls the allure of remittitur , ” Durant ,48 2020 WL 1295058, at *34. Still, certain parameters are instructive, includin g aw a rds in
similar cases

. Anderson , 550 S.W.3d at 620

– 21 , 62 3. In keeping with th e briefing ’ s structure, we discuss mental anguish first.
1
. Mental anguish J uries must necessar ily have a measure of discretion in assessing damages given

“ the impo ssibi lity of any exact evalu a tion of men tal a nguish , ” although they “c annot simply pick a n u mber and put it in the blank. ” Bennett v. Grant , 525 S.W. 3d 642,
6 48 (Tex. 201 7) (quoting Saenz v. Fid. & Guar. Ins. Underwriters , 925 S.W.2d 607,
614 (Tex. 1996) )

. Rath er, the t ouchstone is an amount that “would fairly and

rea so nably compensate ” for the d istress, and evidence must exist that the amount
found is i ndeed f air and reasonable. Saenz , 925 S.W.2d at 614 (holding no evidence that plaintiff suffered mental anguis h or that amount awarded w ould be fair and

r eason able wher e only evidence was plaintif f

’s testimony that she “ worried

. . . a lot ”
about who wou ld pay fo r her ant icipated lifetime medical exp enses and whethe r she
and her husband could keep their home ).
Menta l

- ang uish awards in wildly differ ing amo unts have been upheld depen ding on the unde r lying claim . In Anderson , involving a defamatory whisper

ca mpaign about kickb acks but no criminal prose cution, the supreme court “ pointed to cases upholding past mental

- ang uish awards of $20,000, $25,000, $35,000 , and $50,000, statin g that these cases inv o lved similar or more egregious defamatory
behavior

. ” Dura nt , 2020 WL 1295058, at *33 (citing Anderson , 550 S.W.3d at 619,49 620 n.65)

. Then again , mental

- anguish awards in am o unts ranging from $100,000 to $250,000 have been uphel d in o ther defamation cases

. See, e.g. , Memon v. Shaikh , 401 S.W.3d 407, 419

– 20 (Tex. Ap p.

— Hou ston [1 4t h Dist.] 2013, no pet.) ( $100,000) , judgment withdrawn , appeal di smissed , No. 14

- 12

- 00015

- CV, 2014 WL 667956 2 (Tex. App.

— H ouston [14 t h Dist.] No v . 25, 2014, no pet.) (per curiam) (mem. op.) ; Tranum , 283 S.W.3d at 422 ($250,000); B unton v

. B e ntley , 176 S.W.3d 18, 20

– 21 (Tex. A p p.

— Tyler 2003) ($150,000) , rev ’ d on other grounds , Bunton v. Bentley , 153 S.W. 3d 50 (Tex. 2004)

. For cases involvin g ment al anguish over a sexual assault or a chil d ’ s abduction , awards of $ 1.5 million and $ 2 m illion, r es pectively, have been upheld

. Sheikh v. Doe , N o. 05

- 19

- 01329

- CV, 202 1 WL 2947663, at *4

– 5 (Tex. App.

— Dallas June 30, 2021, no pet.) (m em. op.) (sexual assault) ; Guimara es v. B rann , 562 S.W.3d 521, 546

– 47 (Tex. App.

— Houston [1s t Dist. ] 2018, pet. denied) ( ch ild abducti on)

. Bearden po ints u s to several malicious

- prosecution cases in volving mental

angui sh da mages , chief among them Benne tt , 52 5 S.W.3d at 647

– 49, i n which the plaintiff r eceived $5,000 for his mental anguish. Calling the award “ relativ ely modes t, ”
id. at 648, the supreme c ourt was examining not the reasonableness of the amount , but
rather w hethe r legally sufficient evidence exist ed to support a menta l

- anguish award in

t he first place

. As Leclair notes, nothing in Bennett tells us whe the r some va st ly higher
amount would have survived scrutiny. On the other hand, e xcessiveness was an issue in Eans v. Grocer S upply Co. , 580 S.W.2d 1 7 (Tex. App.

— H ou ston [ 1s t Dist.] 1979, no wr i t) . There, but for a50 JNOV, a plaintiff wrongly accused of misdemeanor thef t would have won $100,000 in damages upo n a jury instruction that “ it might take into account in connection w ith

t he damage issues the elem ents of me ntal anguish, em barra ssment and h umilia tion and any necessary bond fees and attorney ’ s fees in defense of t he criminal prosecution. ” Id. at 23. The re was evidence that Eans had incurred $1,550 in legal and
bond fees , so t he re maining $98,450 represented no neconomic harm

. After holding
th a t the trial court erred in entering a JNOV in t he defendant ’ s fa vor, t he a pp ellate

court agreed with the defendant ’ s conditional cross

- point on excessiveness and suggested a remitter of $3 0,000 off the $100,000 in exercisin g its “ sound jud icial judgment a n d discretion in the ascertainment of the amount that would be re asonable

c om pensation for the inju ry sustained

. ” I d

. The court did not explain its reasoning, although it noted Eans ’ s testimony that he “ felt bad ” whenever he had to ma ke a
court appearance. Id. Eans ’ s sister testified that she had o bserved changes in him since
the a rrest , which the court summar iz ed : “ He is withdrawn, goes through strains of depression and is restless. He could not sleep when he had to go to court. He did not
socialize like h e used to, and he expressed present feelings of anxiety about being
br anded a criminal. ” Id. Other courts have compared pecuniary to nonpecuniary mental

- angu ish

a

wards, considering a highly lopside d ratio to be som e in dication

— t hough not so in
and of itse l f

— that factually insufficient ev idence supports th e latter. See Lane v.
Ma rt ine z , 494 S. W.3d 339, 342, 347, 351 (Tex. A p p.

— Eastland 2015, no pet.) (noting51 17 :1 ra tio of nonpecuniary to pecuniary da mages, along with out sized award compared with similar cas e s and the jury ’ s having apparently chosen a n over a ll damage award that it th en sp lit equ ally among eight damages categories, including mental anguish, as col lec ti vely showing factual ins ufficiency ) ; Bishop Abbey Ho mes, Ltd.
v. Hale , No. 05

- 14

- 01137

- CV, 20 1 5 WL 9167799, at *18

– 19 (Tex. A p p.

— Dallas Dec. 16, 2015, pet. denied ) (mem

. op.) (noting rat io of roughly 6:1 be tween mental

- anguish
award and pecun i ar y loss ari sing from foundation issues and suggesti ng remittitur to

amou nt in plaintiffs ’ pretrial disclosure s , which sought mental

- anguish dam ages equal
to rep air costs) , suppleme nt ed

, No. 05

- 14

- 01 137

- CV, 2016 WL 80546 (Tex. App.

— Dallas Jan. 7, 2016, no pet.) (mem. op.)

. And o f course, nonpecuniary awards are possible whe n th ere are no economic damages. E.g. , Be n tley , 94 S.W.3d at 575

– 76. Here, we do not consider $485,000 to be ex ce ssive for Leclair ’ s mental anguish connected with the malicious prosecu tion. H e testified to experienc ing a high degree
of anguish over being indicted and arres ted, and Seay corro bora t ed that anguish

. Although other events in Leclair ’ s l ife

— the divorce, To pper ’ s accident, his busines s bre akup with Dugan, financial difficul ties, and his bro ther ’ s death

— contributed to his
emotional state , Lecla ir characterized his indictm ent and arrest a s “ significantly more

trau matic

. ” He testified to a deg ree of mental p a i n and stress that he had never be fore experienc ed , and attributed that pain and stress to the felony

- theft accusation and its
aftermath

.52 Leclair faced losing his liberty for up to two years

— 730 day s , 1 7,520 hours , more than one million min utes

— for a crim e that both Bearden and he knew he did
not commit. On these facts, the jury ’ s award does n ot shock our judicial conscience. See
Gordon , 2019 WL 619186, at *11 (citing Pool , 715 S. W.2d a t 635)

. The evidence is factually sufficient to support that award , and w e decline Bearden ’ s request that we suggest a remittitur.
2
. Reputational h arm W e also conclude that the j ury ’ s award of $200,0 00 in tota l reputation al damages is supported by factu a lly sufficien t evi dence

. “Reputational damages are not

a menable to exa ct calculation , so th e fac tfinder must use ‘ sound judgm ent ’ in determining the amount of such d amages, ” and “ [s]ound judgment be g ins with the
facts of the case. ” Innovative Block of S. T ex., Ltd. v. Valle y Builders Supply, Inc. , 60 3 S.W.3d 40 9, 423 (Tex. 2 02 0) (quoting Waste Mgmt. of Tex., Inc. v. Tex. Di sposal Sys. Landfill, I n c. , 434 S.W.3d 142, 154 (Tex. 2014) ). The f act s of this case are pretty egregious, par ticularly considering the raref ied air of a close

- kn it community such as the reining world , wher e reputations can undoubtedly be swiftly destroyed by
someone determined to do so and where , for financial reasons, trai ners must strive to keep even difficult clients happy

. 31

31 In conce din g tha t hi s texts w ith Bearden in Ma y 2012 showed that he wasn ’ t

“ being a good perso n ” and was “ just following alo ng, ” J ohnson t estified that Bearden53 A l tho ugh Leclai r did not seek or prove any “ hard ” damages such as lost pro f its,
he did testif y to a large drop in gross reven ues be cause of the indictment , some $300,000 . Johnson said he became queasy abou t sending clients Lec lair ’ s way

— “ y o u needed to distance yourself ” from him

— and noticed th at Leclair had fewer horses to show, to th e point that Leclair once had only a single nonprof essional client and no
staff at a particular show where Seay steppe d in to help him. Before the indictment,
L ecla ir ’ s repu tation h ad been go od and on the rise.
As with the mental

- anguish damages, our judic ia l conscience is not shocked o n these facts by the jury ’ s aggregate $200,000 award

. See Gordon , 2019 WL 619186, at
*11 (citing Pool , 715 S. W.2d at 635)

. Indeed, it is in li ne with Bentley , which le ft intact the jury ’ s $1 50,000 a ward for reputation d a mages . 94 S.W.3d at 60 5

– 0 7 . Ditto for
Durant , another ca se involving a “ small and close

- knit ” community, see Anderson , 550 S.W.3d at 612, where we concluded on remand that $ 400,0 0 0 was too high but $150, 000 would be appropriate for An d erson ’ s reputation d a mages s temming from kickback allegations (but no indictm ent)

. Durant , 2020 WL 1295058, at *33 ; s ee also Vodicka v. Tobolowsky , No. 05

- 17

- 00727

- CV , 2019 WL 1986625, at *3 (Tex . Ap p.

— D allas May 6, 2019 , no pet. ) (mem. op.) (affirming $5 0 0,000 in damages for “ inju ry to

“ w as the type of person that somebody needs as a client in this industry , ” clearly meaning “ wealthy. ” Ev en so, B eard en di d no t last long at Johnson ’ s facilities : “ We did not have the gre a test Fu turity, which is a show

- - big show in December. And [Be arden] was

- - she was pretty upset , and she took it out on my wife and a girl that worked for me. And I

- - I had had enough, an d I couldn ’ t tolerate the way she wa s treating people, so we had a discussion. ”54 Ira Tobolows ky ’ s reputation and his mental an guish , ” where evidence “ showed that
th e harm to his reputation caused him to lose clients and income ” ).
None of th o se case s involved a malicious pr osec ution

. Bearden ’ s getting Le clair
indicted and th e n imm ed iately defaming h im on Facebook does not strike u s as unworthy of $200,000 in reputatio n damages as fair and reasonable compensation , and the evidence supports it

. We overrule Bearden ’ s third issue in its entirety

. C. Exemplar y damages
In her fi n al, c on ditional issue, Bearden ar gues that we shoul d revisit exemplary damages if we suggest a r e mittitur

. 32 Because we have decline d to do so, we need not
reach this issue.
I X. Conclusion
W e overrule Bearden ’ s issues and affirm the trial cour t ’ s ju dgment

.

/s/ E lizabeth Kerr El i za beth Kerr J ustice
Delivered: August 11, 2022

32 Bearden does not otherwise ch allenge the exemplary

- damages award

.