COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00285-CV

MARY CUMMINS APPELLANT

V.

BAT WORLD SANCTUARY AND 

AMANDA LOLLAR

APPELLEES

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

FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 352-248169-10

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MEMORANDUM OPINION1

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I. Introduction

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

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

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

 1

See Tex. R. App. P. 47.4.
2

which Cummins represented herself and for which Lollar and BWS had pro bono 

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

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

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

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

permanently enjoined and she is ORDERED to immediately and permanently 

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

2

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

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

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

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

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

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

exemplary damages award and did not adequately challenge the award on 

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

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

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

part.

 2

This court received two friend of the court briefs in this case—one on 

behalf of Public Citizen and one filed jointly by The Cambodia Wildlife Sanctuary 

and ElephantsinCrisis.org.
3

II. Background

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

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

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

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

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

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

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

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

for re-release.

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

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

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

signed an internship contract.

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

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

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

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

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

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

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

indoor colony had mites, and that Lollar had failed to notice when a bat fell into a 
4

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

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

her pet dogs.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

comments, however, portrayed Lollar as someone too uneducated and 
5

unintelligent to be considered an expert on wildlife rehabilitation. Cummins

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

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

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

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

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

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

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

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

that Lollar had earned her GED.

Cummins also posted negative statements about Lollar’s attorney

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

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

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

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

falling asleep during the deposition and called the Tarrant County Bar 

Association to question his competence, prompting him to withdraw from 

representing her.

Lollar amended her petition to include the statements that Cummins had 

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

 3

These are all jobs that Lollar had held before founding BWS.
6

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

civil practice and remedies code.4

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

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

now appeals.

III. Standards of Review

Legal Sufficiency

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

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

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

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

 We 

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

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

rendered the proper judgment.6

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

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

 4

See Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (West 2011).

5

Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Anderson v. City of 

Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); see also MBM Fin. Corp. v. 

Woodlands Operating Co., 292 S.W.3d 660, 663 n.3 (Tex. 2009).

6

City of Austin v. Whittington, 384 S.W.3d 766, 779 n.10 (Tex. 2012) (citing 

BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002)); 

H.E.B., L.L.C. v. Ardinger, 369 S.W.3d 496, 513 (Tex. App.—Fort Worth 2012, no 

pet.).
7

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

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

 More than a 

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

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

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

evidence.9

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

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

finder could have considered favorable and disregarding unfavorable evidence 

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

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

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

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

 7

Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 

142, 156 (Tex. 2014).

8

Id.

9

Burbage v. Burbage, 447 S.W.3d 249, 259 (Tex. 2014).

10Waste Mgmt., 434 S.W.3d at 156.

11Id.
8

evidence to determine whether the contrary proposition is established as a 

matter of law.12

Actual Malice

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

First Amendment requires appellate courts to conduct an independent review of 

the evidence supporting the finding.

13 The Texas Supreme Court has described 

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

determinations of credibility.

The independent review required by the First Amendment is 

unlike the evidentiary review to which appellate courts are 

accustomed in that the deference to be given the fact finder’s 

determinations is limited. Indeed, the [United States] Supreme Court 

has stated that “[t]he question whether the evidence in the record in 

a defamation case is sufficient to support a finding of actual malice is 

a question of law.” On questions of law we ordinarily do not defer to 

a lower court at all. But the sufficiency of disputed evidence to 

support a finding cannot be treated as a pure question of law when 

there are issues of credibility.

. . . .

. . . . [A]n independent review of evidence of actual malice 

should begin with a determination of what evidence the jury must 

have found incredible. . . . As long as the jury’s credibility 

determinations are reasonable, that evidence is to be ignored. Next, 

undisputed facts should be identified. . . . Finally, a determination 

must be made whether the undisputed evidence along with any 

 12Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Sterner v. 

Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).

13Bentley v. Bunton, 94 S.W.3d 561, 597 (Tex. 2002).
9

other evidence that the jury could have believed provides clear and 

convincing proof of actual malice.14

IV. Discussion

A. Defamation

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

defamation. Her issues are:

1. Are Appellees Amanda Lollar, BWS, limited-purpose public figures 

with respect to their voluntary and public participation in animal and 

bat care?

2. Are statements about Appellees, public safety, public health, 

government action, statements about matters of public concern?

3. Did Appellees present “more than a scintilla” of evidence that any 

of the supposed defamatory statements meets all four of the 

following criteria?

a. is a verifiable statement of fact;

b. is false or not substantially true;

c. is of and concerning Appellees; and

d. is capable of conveying a defamatory meaning about 

Appellees?

4. Did the trial court err in granting [Lollar and BWS] judg[]ment 

against Appellant for defamation?

5. Were Appellees entitled to the amount of compensatory or 

exemplary damages awarded?

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

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

 14Id. at 597–99.
10

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

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

Although the petition alleged that Cummins made false, defamatory statements 

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

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

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

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

support the judgment for defamation as to BWS.

1. Law of Defamation in Texas

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

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

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

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

 15See Waste Mgmt., 434 S.W.3d at 150 n.35 (noting that a corporation 

may sue for defamation but a business may not; the owner of a business may 

sue for defamation and a business may sue for business disparagement).

16See Tex. Bus. Org. Code Ann. § 252.006(a) (West 2012) (“A nonprofit 

association is a legal entity separate from its members for the purposes of 

determining and enforcing rights, duties, and liabilities in contract and tort.”); 

Daniels v. Empty Eye, Inc., 368 S.W.3d 743, 752 (Tex. App.—Houston [14th 

Dist.] 2012, pet. denied) (observing that a corporation and its president are 

distinct entities).

17See Waste Mgmt., 434 S.W.3d at 150 n.35. See Burbage, 447 S.W.3d

at 261 n.6, for a discussion of the differences between a claim for defamation 

and one for business disparagement.
11

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

must also prove that the statements were false.19

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

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

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

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

20 A defamatory 

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

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

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

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

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

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

 18In re Lipsky, 411 S.W.3d 530, 543 (Tex. App.—Fort Worth 2013, orig. 

proceeding).

19See, e.g., Hearst Corp. v. Skeen, 159 S.W.3d 633, 637 n.1 (Tex. 2005) 

(“Proving falsity in a public-figure defamation case is the plaintiff’s burden of 

proof.”).

20Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 728 (Tex. App.—

Houston [14th Dist.] 2013, pet. denied) (citing Turner v. KTRK Television, Inc., 38 

S.W.3d 103, 114–15 (Tex. 2000), and Tex. Civ. Prac. & Rem Code. Ann. 

§ 73.001.

21Morrill v. Cisek, 226 S.W.3d 545, 549–50 (Tex. App.—Houston [1st Dist.] 

2006, no pet.).

22Id.
12

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

defamatory meanings through extrinsic evidence.

23

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

24 

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

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

criticism against the government was actionable even if the critical statements 

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

privilege of “fair comment.”

27 Additionally, even in early cases in this country, the 

law allowed truth as a defense.28

 23Hotchkin v. Bucy, No. 02-13-00173-CV, 2014 WL 7204496, at *4 (Tex. 

App.—Fort Worth Dec. 18, 2014, no. pet.) (mem. op.); Meisel v. U.S. Bank, N.A., 

396 S.W.3d 675, 680 (Tex. App.—Dallas 2013, no pet.).

24Curtis Pub. Co. v. Butts, 388 U.S. 130, 151, 87 S. Ct. 1975, 1989 (1967).

25Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766 (Tex. 1987); John 

E. Hallen, Fair Comment, 8 Tex. L. Rev. 41, 53 (1929); see also John J. Watkins 

& Charles W. Schwartz, Gertz and the Common Law of Defamation: of Fault, 

Nonmedia Defendants, and Conditional Privileges, 15 Tex. Tech. L. Rev. 823, 

825 (1984).

26Hallen, supra note 25, at 53; see also Curtis Pub., 388 U.S. at 151, 87 S. 

Ct. at 1989.

27Milkovich v. Lorain Journal Co., 497 U.S. 1, 13–14, 110 S. Ct. 2695, 

2703 (1990) (observing that the privilege of “fair comment” was incorporated into 

the common law); Cain v. Hearst Corp., 878 S.W.2d 577, 581 (Tex. 1994)

(discussing various privileges); Hallen, supra note 25, at 41–42.

28See Hallen, supra note 25, at 53–54 (citing Commonwealth v. Clap, 4 

Mass. 163, 169 (1808)); see also Neely v. Wilson, 418 S.W.3d 52, 62 (Tex. 2013, 

pet. denied) (noting that “[t]he common law and statutes provide certain defenses 

and privileges to defamation claims”).
13

Significant changes to modern defamation law began with New York Times 

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

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

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

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

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

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

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

with “actual malice.”

30

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

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

spite or ill-will.

31 But in the context of defining the constitutional privilege under 

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

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

32 

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

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

 29376 U.S. 254, 279, 283, 84 S. Ct. 710, 726–27 (1964).

30Id. at 280–81, 84 S. Ct. at 726.

31See, e.g., Holt v. Parsons, 23 Tex. 9, 20 (1859) (stating that to be 

classified as a privileged communication, a statement must have been made free 

from malicious intent).

32New York Times, 376 U.S. at 279–80, 84 S. Ct. at 726.
14

reckless disregard of whether it was false or not.”

33 Because ‘“actual malice 

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

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

to proving actual malice.

34

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

the actual malice requirement applies to defamation actions brought by public 

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

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

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

 33Id.; Masson v. New Yorker Magazine, 501 U.S. 496, 510–11, 111 S. Ct. 

2419, 2429–30 (1991) (describing this standard as requiring proof that the author 

“entertained serious doubts as to the truth of his publication or acted with a ‘high 

degree of awareness of . . . probable falsity’”) (citations omitted); see also

Watkins & Schwartz, supra note 25, at 870–71 (noting the difficulty courts have 

had with the interplay between the ill will malice standard used to defeat a state 

law privilege and the “constitutional malice standard” required under the First 

Amendment).

34Freedom Newspapers of Tex. v. Cantu, 168 S.W.3d 847, 858 (Tex. 

2005) (quoting New Times, Inc. v. Isaacks, 146 S.W.3d 144, 165 (Tex. 2004) and 

stating that “[w]hile a personal vendetta demonstrated by a history of false 

allegations may provide some evidence of malice, free-floating ill will does not”).

35388 U.S. at 164, 170, 172, 87 S. Ct. at 1996, 1999, 2000; see Gertz v. 

Robert Welch, Inc., 418 U.S. 323, 342, 94 S. Ct. 2997, 3008 (1974) (stating that 

people may be classed as public figures either “by reason of the notoriety of their 

achievements” or because of “the vigor and success with which they seek the 

public’s attention”).
15

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

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

36

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

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

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

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

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

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

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

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

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

38

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

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

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

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

 36403 U.S. 29, 43, 91 S. Ct. 1811, 1819 (1971), abrogated by Gertz, 418 

U.S. 323, 94 S. Ct. 2997. Justice Marshall dissented, pointing out that the under 

that rule, “courts will be required to somehow pass on the legitimacy of interest in 

a particular event or subject.” Id. at 79, 91 S. Ct. at 1837.

37418 U.S. at 343, 94 S. Ct. at 3008–09.

38Id. at 351, 94 S. Ct. at 3012–13.
16

media defendants.

39 But the Court left it to the individual states to decide what 

degree of fault had to be proven.

40

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

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

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

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

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

public interest’ and which do not.”

42

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

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

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

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

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

 39Id. at 346–47, 94 S. Ct. at 3010.

40Id.; Neely, 418 S.W.3d at 61.

41Gertz, 418 U.S. at 349, 94 S. Ct. at 3011.

42Id. at 346, 94 S. Ct. at 3010. In his dissent, Justice Brennan disagreed 

with the majority’s failure to provide to the media the same level of constitutional 

protection when its “reports concern private persons’ involvement in matters of 

public concern” as it did for reporting about public officials and figures. Id. at 362, 

94 S. Ct. at 3019 (Brennan, J., dissenting).

43Id. at 345–47, 94 S. Ct. at 3010.
17

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

recover either presumed or punitive damages.44

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

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

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

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

Dun & Bradstreet involved statements about Greenmoss Builders in a credit 

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

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

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

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

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

47 After discussing 

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

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

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

remedies for defamation “adequately supports awards of presumed and punitive 

 44Id. at 349, 94 S. Ct. at 3011.

45472 U.S. 749, 751, 105 S. Ct. 2939, 2941 (1985).

46Id. at 751, 105 S. Ct. at 2941.

47Id.
18

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

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

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

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

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

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

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

a matter of public concern.

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

up the “public concern” standard.

49 The Court considered New York Times and 

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

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

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

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

50

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

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

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

 48Id. at 761, 105 S. Ct. at 2946 (emphasis added).

49475 U.S. 767, 106 S. Ct. 1558–59 (1986).

50Id. at 775, 106 S. Ct. at 1563.

51Id. at 768–69, 106 S. Ct. at 1559.
19

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

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

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

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

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

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

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

false has not been answered by the Supreme Court.

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

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

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

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

 52Id. at 777, 106 S. Ct. at 1564 (emphasis added).

53Id. at 779 n.4, 106 S. Ct. at 1565. In his concurring opinion, Justice 

Brennan complained that “such a distinction is irreconcilable with the 

fundamental First Amendment principle that [t]he inherent worth of . . . speech in 

terms of its capacity for informing the public does not depend upon the identity of 

the source, whether corporation, association, union, or individual.” Id. at 780, 

106 S. Ct. at 1565 (Brennan, J., concurring) (citations and internal quotation 

marks omitted); see also Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 

289, 309 n.16, 99 S. Ct. 2301, 2314 (1979) (“We have not adjudicated the role of 

the First Amendment in suits by private parties against nonmedia defendants.”).

54Neely, 418 S.W.3d at 61; Casso v. Brand, 776 S.W.2d 551, 554 (Tex. 

1989) (stating that the court was “reluctant to afford greater constitutional 

protection to members of the print and broadcast media than to ordinary citizens”

and therefore holding that when a public figure sues a private individual, the 

plaintiff must prove that the defendant made false and defamatory statements 

about the plaintiff with actual malice).
20

the plaintiff must show negligence.

55 Based on Gertz and Dun & Bradstreet, the 

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

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

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

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

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

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

no damages are presumed).

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

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

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

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

by more than a preponderance of the evidence.

58 The Texas Supreme Court 

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

 55Neely, 418 S.W.3d at 61.

56Hancock v. Variyam, 400 S.W.3d 59, 65, n.7 (Tex. 2013).

57See Hepps, 475 U.S. at 776, 106 S. Ct. at 1563; Neely, 418 S.W.3d at 

62.

58See Bentley, 94 S.W.3d at 587.
21

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

are not on a matter of public concern.59

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

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

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

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

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

have compared with private individuals and the resulting “more realistic 

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

individuals are therefore more vulnerable to injury.”

60 Today, with the advent of 

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

than it once was.

Furthermore, the United States Supreme Court has recognized “the 

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

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

debate,”

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

 59See Casso, 776 S.W.2d at 555 n.3 (“We need not at this time decide 

whether every plaintiff in any defamation case, regardless of his status or that of 

the defendant, must prove falsity as an element of his cause of action.”); see also 

Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995) 

(continuing to apply the rule that “[i]n suits brought by private individuals, truth is 

an affirmative defense to slander”).

60418 U.S. at 344, 94 S. Ct. at 3009.

61Herbert v. Lando, 441 U.S. 153, 189, 99 S. Ct. 1635, 1655 (1979).
22

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

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

Neither the United States Supreme Court nor the Texas Supreme Court 

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

technology.

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

plaintiffs and defendants.

63 With this background in mind, we turn to Cummins’s 

issues.

2. Sufficiency of the Evidence to Show Defamation

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

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

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

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

court.

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

First, there must be a public controversy or issue.

65 In this context, the 

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

 62See Kinney v. Barnes, 443 S.W.3d 87, 100–01 (Tex. 2014).

63But see Watkins & Schwartz, supra note 25, at 849–50 (acknowledging 

that “public opinion is affected each day by the communications between millions 

of private persons,” and “an individual’s attitude toward political issues is formed 

not only by the institutional media, but also by communications in family groups, 

social groups, work groups, and peer groups in general” (citations omitted)).

64Neely, 418 S.W.3d at 70.

65Id.
23

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

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

66 The controversy must 

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

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

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

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

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

not direct participants.”

68 We may also look to whether “the press was covering 

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

to help the public formulate some judgment.”

69

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

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

controversy.”

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

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

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

 66Id.

67WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 572 (Tex. 1998).

68Einhorn v. LaChance, 823 S.W.2d 405, 411–12 (Tex. App.—Houston [1st 

Dist.] 1992, writ dism’d w.o.j.).

69McLemore, 978 S.W.2d at 572 (quotation omitted).

70Neely, 418 S.W.3d at 70.
24

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

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

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

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

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

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

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

73

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

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

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

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

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

local and statewide debate.

Cummins does not explain what specific controversy the writings relate to 

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

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

 71Gertz, 418 U.S. at 344–45, 94 S. Ct. at 3009.

72McLemore, 978 S.W.2d at 573 (brackets in original).

73Neely, 418 S.W.3d at 70.

74See Hutchinson v. Proxmire, 443 U.S. 111, 135, 99 S. Ct. 2675, 2688 

(1979) (stating that before defamatory statements were made about the plaintiff, 

he had published writings that reached only “a relatively small category of 

professionals,” that the plaintiff had not “thrust himself or his views into public 
25

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

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

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

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

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

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

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

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

Lollar has involved herself.

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

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

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

erroneous. We overrule Cummins’s first issue.

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

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

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

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

 

controversy to influence others,” and that the defendants had “not identified such 

a particular controversy; at most, they point[ed] to concern about general public 

expenditures,” a “concern is shared by most and relates to most public 

expenditures” and “is not sufficient to make [the plaintiff] a public figure”).

75See Klentzman v. Brady, No. 01-11-00765-CV, 2014 WL 7205206, at *11 

(Tex. App.—Houston [1st Dist.] Dec. 18, 2014, pet. filed) (op. on reh’g) (“Whether 

a plaintiff is a limited-purpose public figure who has involved himself in a public 
26

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

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

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

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

agree that allegations of animal cruelty can be a matter of public concern77—

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

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

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

defamatory statements in suits against nonmedia defendants, even when the 

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

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

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

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

 

controversy and whether an article addresses a matter of public concern are two 

separate legal inquiries with their own implications for defamation law.”).

76Snyder v. Phelps, 562 U.S. 443, 131 S. Ct. 1207, 1216 (2011) (citations 

omitted).

77See Tex. Penal Code Ann. § 42.09 (making cruelty to livestock animals 

an offense), § 42.092 (West 2011) (making cruelty to domesticated living 

creatures an offense).

78See Hepps, 475 U.S. at 777, 779, 106 S. Ct at 1564, 1565 n.4. (stating 

that “placement by state law of the burden of proving truth upon media 

defendants who publish speech of public concern deters such speech” and that 

the Court was not considering “what standards would apply if the plaintiff sues a 

nonmedia defendant” (emphasis added)); Randall’s Food Mkts., 891 S.W.2d at 

646.
27

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

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

issue.79

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

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

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

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

together.

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

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

opinions that imply the existence of undisclosed facts because the statements 

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

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

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

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

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

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

 79The Cambodia Wildlife Sanctuary’s brief states that “actual documents 

and photographs” proved that Lollar committed animal cruelty. We commend the 

Sanctuary for its advocacy for the protection of animals, but if such documents or 

photographs exist, they were not included in the appellate record.

80See Rehak Creative Servs., 404 S.W.3d at 732 (stating that linked 

documents were part of the context that had to be considered in addressing what 

a website conveyed about the plaintiff).
28

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

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

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

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

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

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

Similarly unpersuasive is Cummins’s argument that some of the 

statements were taken from reports made to government agencies and therefore 

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

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

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

Furthermore, defamation privileges may be either absolute or conditional,

82 and 

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

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

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

issues.

 81See Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 768 (Tex. 1987)

(stating that not all communications to public officials are privileged).

82 Id. (discussing defamation privileges and stating that the conditional 

privilege that applies to statements made in the public interest is defeated when 

the privilege is abused).

83See Tex. R. App. P. 38.1(i).
29

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

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

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

pregnant bat in labor.

The argument is unavailing. Lollar alleged that Cummins had added

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

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

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

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

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

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

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

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

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

part of Cummins’s third and fourth issues.

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

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

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

 84Kaufman v. Islamic Soc. of Arlington, 291 S.W.3d 130, 144 (Tex. App.—

Fort Worth 2009, pet. denied) (‘“In order to entitle one to maintain an action for 

an alleged defamatory statement, it must appear that he is the person with 

reference to whom the statement was made.’”) (quoting Newspapers, Inc. v. 

Matthews, 339 S.W.2d 890, 893 (1960)).
30

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

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

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

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

these pages.

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

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

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

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

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

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

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

her third and fourth issues.

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

arguments about the sufficiency of the evidence to support the defamation 

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

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

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

 85See Tex. Penal Code Ann. § 42.092 (making it an offense for a person to 

intentionally, knowingly, or recklessly fail unreasonably to provide necessary care 

for a domesticated animal in the person’s care).
31

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

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

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

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

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

meaning.

Allegations of Animal Cruelty

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

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

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

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

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

stand.

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

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

veterinarian recommended treatment, but instead, Lollar refused treatment and 

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

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

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

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

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

bats die from neglect and impersonating a doctor to illegally obtain rabies 
32

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

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

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

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

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

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

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

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

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

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

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

“seems pathological.”

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

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

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

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

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

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

such, they injure her in her profession.86

 86See Hancock, 400 S.W.3d at 66–67 (citing the Restatement (Second) of 

Torts to “more fully define” a statement “that injures one in her profession”).
33

Cummins argues that some of her statements described what she 

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

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

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

say exactly what the veterinarian records contained because Cummins did not 

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

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

they do.87

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

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

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

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

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

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

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

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

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

 87See Hotchkin, 2014 WL 7204496, at *6 (observing that we generally may 

not consider matters outside the appellate record).

88See Tex. R. App. P. 38.1(i) (requiring citations to relevant authority for 

the arguments made in an appellant’s brief).

89Tex. Penal Code Ann. § 42.092(b)(3).
34

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

care for her dogs.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[h]e was 19 years old when he was euthanized. It was too late to 

have any dental work done on him. Up until that point, he had 

maintained a very healthy mouth. But when an animal reaches an 

age that they’re too old to have anesthesia administered, there is no 

way to do any dental work on them because they might not wake up 
35

from surgery. He was also at the very end of his life. He was 

euthanized after he collapsed a—a few weeks after that.

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

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

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

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

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

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

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

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

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

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

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

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

associate had made the correct decision.

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

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

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

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

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

she stated that none of Lollar’s dogs seemed neglected or mistreated.
36

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

as to these statements.

 90See Bentley, 94 S.W.3d at 587 (stating that the preponderance of the 

evidence standard applies to reviewing proof of falsity in a defamation case).
37

Cummins also made allegations that Lollar committed cruelty toward bats. 

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

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

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

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

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

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

Cummins further stated that Lollar never washed her hands before 

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

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

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

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

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

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

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

paragraph in which this statement appeared, Cummins stated that Lollar 

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

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

to is performing surgery on bats without a veterinarian license.

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

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

disagreed with Lollar’s version of what happened during the episiotomy that 
38

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

vision checked.”

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

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

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

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

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

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

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

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

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

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

were added:

“Amanda cuts the bat’s vagina with scissors three times

Bat convulses near the end then passes out from schock [sic]”

“She can’t tell the difference between a foot and baby’s head

Amanda pulls too much and bat’s vagina, uterus prolapse”

“Mom bat passes out from shock

She later dies”

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

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

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

Report Amanda Lollar for animal cruelty and neglect.” These statements
39

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

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

rehabilitator and as an expert in bat care.91

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

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

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

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

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

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

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

the violations.”

Cummins was asked why she stated online that Lollar had obtained 

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

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

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

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

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

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

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

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

 91See Hancock, 400 S.W.3d at 64, 66–67.
40

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

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

illegal.

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

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

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

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

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

disagreement was over the content of the captions.

Cummins admitted that she had never performed an episiotomy and had 

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

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

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

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

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

bat after the surgery when she looked for her.

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

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

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

represented as verifiable facts.

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

captions. Lollar testified that the bat did not pass out from shock; that a person 
41

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

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

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

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

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

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

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

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

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

prolapse had occurred.

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

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

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

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

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

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

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

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

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

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

she uses is one that researchers and professionals in the field use and that the 
42

American Veterinary Medical Association recommends the method of euthanasia 

she uses as a humane method of euthanasia.

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

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

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

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

statements about Lollar’s use of Isoflurane were false.

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

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

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

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

that microbats cannot be rendered completely unconscious with general 

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

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

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

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

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

general anesthesia just to extract a tooth.”

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

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

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

had never seen Lollar commit animal cruelty.
43

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

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

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

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

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

statements about Lollar’s surgery on bats were false.

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

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

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

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

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

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

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

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

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

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

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

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

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

statements.

Cummins further challenges the judgment of defamation as to three 

webpages that she was ordered to remove in their entirety. In her argument 
44

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

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

statements appeared on those three particular pages because the judgment 

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

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

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

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

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

they were true or defamatory.

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

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

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

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

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

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

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

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

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

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

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

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

the three webpages Cummins was ordered to remove included in the URL 
45

“amanda_lollar_1994_manual_original.pdf,” and the parties agreed that 

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

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

particular webpage, the evidence showed that Cummins asserted multiple times 

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

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

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

introduced evidence sufficient to support the judgment that Cummins’s 

statements on the subject were false.

The procedure that Lollar recommended involved putting a bat in a 

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

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

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

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

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

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

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

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

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

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

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

recommended was one that, at the time, had been used by researchers for 
46

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

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

about Lollar’s recommended euthanasia methods were not true.

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

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

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

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

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

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

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

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

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

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

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

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

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

support defamation is not persuasive. Cummins makes no other argument 

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

Other than these three statements, Cummins does not challenge the 

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

 92See Tex. R. App. P. 38.1(i).
47

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

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

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

to the webpages she was ordered to remove.

Allegations of Fraud

Cummins made a number of statements alleging that Lollar committed 

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

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

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

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

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

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

laugh that she does this frequently.”

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

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

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

produced evidence that specifically discussed whether Lollar used money that 

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

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

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

 93See id.
48

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

internet postings. Furthermore, although Cummins characterized this statement 

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

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

the funds.

As to the second statement, neither Cummins nor Lollar provided 

testimony or other evidence about whether Lollar regularly buys merchandise, 

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

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

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

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

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

Lollar’s defamation claim.

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

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

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

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

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

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

was accusing Lollar of a crime when she said that.

Cummins also acknowledged that she had posted online an accusation 

that Lollar might be collecting welfare illegally. After seeing a police report 
49

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

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

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

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

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

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

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

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

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

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

someone’s welfare.

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

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

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

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

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

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

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

 94See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986) (stating 

that when faced with conflicting evidence, the factfinder can believe one witness 

and disbelieve others).
50

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

Cummins made numerous statements alleging or implying that Lollar 

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

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

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

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

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

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

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

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

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

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

Lollar acknowledged that BWS’s permit for its insectivorous colony 

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

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

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

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

Lollar further testified that game wardens from the Texas Parks and

Wildlife Department had inspected the facility and found no violations from 

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

agency and that BWS has always passed those inspections, it has never been 
51

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

revoked.

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

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

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

attorney stated,

This is to advise you that TPWD will not be responding to any 

further allegations from you concerning Amanda Lollar’s facility. 

Representatives of the TPWD Law Enforcement Division visited that 

facility earlier this year and found no violations of the Texas wildlife 

laws. In light of this information and your baseless claim that 

someone at TPWD is libeling and defaming you, we consider the 

matter closed.

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

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

guilty of violating the permit.

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

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

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

testimony explaining the damaging nature of the statements was unnecessary 

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

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

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

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

causing BWS to violate its permit or that Lollar was incorrect in her 
52

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

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

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

thereby violating BWS’s permit were false.

Cummins was also ordered to remove statements that BWS had been 

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

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

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

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

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

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

it was in unfit for habitation.

96

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

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

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

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

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

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

 95Cummins did not clarify whether she meant the City of Mineral Wells’s 

health department, the Texas Department of State Health Services, or some 

other government entity.

96See Hancock, 400 S.W.3d at 66–67.
53

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

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

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

the city.

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

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

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

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

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

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

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

provided no evidence to the contrary.

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

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

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

rabies vaccine thinks she is a doctor. She stated that Lollar exposed interns to 

rabies by not checking their vaccination cards to ensure that they had been 

vaccinated against rabies. And she stated that Lollar handled rabid bats with her 

bare hands, implying that Lollar was not knowledgeable about how to handle 

bats. These statements are defamatory per se because they injure Lollar in her 

profession, and at least one accuses Lollar of a crime.
54

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

own testimony. She stated that while at BWS, Lollar told her to give rabies 

vaccinations to bats. Cummins stated that only veterinarians can administer 

rabies vaccinations to bats. Cummins testified that she reported Lollar to 

authorities for giving vaccinations to bats. And she reported Lollar for having the 

human rabies vaccine because only a doctor, nurse, veterinarian, or pharmacist 

may have it. She further stated that Lollar told her that she buys the vaccine 

from a company that thinks she is a doctor.

Cummins also testified that while she was there, Lollar held a possibly 

rabid bat in her bare hands. She testified that she had always been told never to 

touch a bat with bare hands, something “all the bat experts know,” yet Lollar told 

her not to wear gloves when handling bats. She stated that Lollar told her to hold

in her bare hands a bat that Lollar said was possibly rabid. Cummins testified 

that neither Lollar nor anyone else asked for proof that she had been vaccinated 

against rabies before beginning her internship.

Kay Singleton testified that Lollar did not tell her to give rabies vaccinations 

to bats. She also testified that although she had proof of pre-exposure rabies 

vaccination, Lollar did not ask to see it.

Lollar stated that she buys the human rabies vaccination but not the animal 

rabies vaccine. She used to buy the animal rabies vaccine when it was legal for 

anyone to do so, but at some point in the 1990s, the law changed. Lollar stated 

that she is not violating the law by buying the human rabies vaccine. She buys it 
55

from Novartis, Novartis knows she is not a doctor, and she works with a 

veterinarian to legally obtain the vaccine.

Lollar explained that BWS works with a nurse practitioner at a doctor’s 

office who accepts people from BWS on a walk-in basis and who administers the 

vaccine if needed. She stated that despite the implication from Cummins’s 

posting that Lollar personally administers rabies vaccinations to people, she does 

not. Lollar will give the vaccine to interns to take to a nurse for administering it, 

but she does not administer vaccines herself.

Regarding holding rabid bats with her bare hands, Lollar testified that while 

Cummins was there, she held in her bare hands a bat pup that was displaying 

neurological symptoms that could be the result of either pesticide poisoning or 

rabies, and that she was about to euthanize the bat because “[t]here is no way to 

save an animal that has those type of symptoms.” She explained that bat pups 

do not have teeth that can break the skin, so “any researcher might” hold such a 

pup in his or her bare hands. According to Lollar, “[i]t’s done all the time” by 

researchers, biologists, and other professionals. Lollar testified that Cummins 

made the statements about holding rabid bats in her bare hands to make it look 

like Lollar did not know what she was doing, how “dumb [she] must be to be 

holding a rabid bat in [her] bare hand.”

Regarding proof of rabies vaccinations, Lollar testified that someone else 

with BWS coordinated the internships the year that Cummins came. That person 

was in charge of checking for proof of rabies vaccinations, and Lollar relied on
56

that person’s report about whether the interns were vaccinated. Lollar stated that 

no one can attend a BWS internship who has not been vaccinated.

Lollar further testified that because of Cummins’s allegations, the Centers

for Disease Control called every intern who had been at BWS in the previous 

year to talk to them about their experience and about BWS protocols. The only 

change to BWS protocols that the CDC recommended was that instead of

recommending that interns wear gloves when working with certain species, BWS 

should make it a requirement.

Dorothy Hyatt, vice president of BWS, testified that she had never seen 

Lollar administer a rabies vaccine to a person. Kennedy testified that she 

received a rabies booster shot while on her last day at BWS, but it was 

administered to her at a doctor’s office, not at BWS. Nobody at BWS 

administered any type of shot to her. Lollar testified that she provided the 

vaccine to Kennedy but did not administer it to her—she drove Kennedy to the 

doctor’s office where the nurse practitioner administered it.

Kennedy stated that she was required to show proof of pre-exposure 

rabies vaccination shots before beginning her internship. And Kennedy testified 

that she was encouraged to wear gloves while at BWS. We hold that the 

evidence was sufficient to support the trial court’s judgment as to statements 

relating to Lollar’s violations of rules, regulations, standards, and laws, and we 

overrule Cummins’s third and fourth issues as to these statements.
57

Also under these issues, Cummins argues that she was not given a copy 

of the specific statements that Lollar and BWS alleged to be defamatory until 

after the trial had concluded, and she could not defend the statements without 

knowing what they were before trial. Lollar’s petition stated that Cummins had 

posted and was continuing to post defamatory statements about Lollar online. If 

Lollar’s petition did not provide enough specificity for Cummins to know which 

statements she would need to defend, Cummins could have specially excepted 

to Lollar’s petition.97 No such special exceptions appear in the appellate record.

Cummins also challenges the judgment against her based on statements 

in exhibit 18, which she contends were made by people other than her. And she 

complains that the exhibits containing the defamatory statements were never 

authenticated. Cummins did not object to a lack of authentication as to exhibit 

18.98 And, as she acknowledges, none of the statements she was ordered to 

remove were in exhibit 18.

Cummins did object that exhibit 17 had not been authenticated, and the 

trial court overruled her objections. But she does not argue, nor do we discern 

from our review of the record, how she was harmed by any lack of authentication

of the exhibits containing the statements, particularly when she admitted at trial 

 97See Tex. R. Civ. P. 90, 91.

98See Tex. R. App. P. 33.1.
58

to making the statements in the exhibits that we have held were defamatory per 

se.99

Finally, Cummins complains about being ordered to remove the episiotomy 

video. She asserts that she introduced evidence that the video is the truth and 

that Lollar did not produce evidence that the contents of the video are false 

because Lollar admits that it is a video of her performing an episiotomy. As we 

stated above, Lollar did not contend that the video does not depict her performing 

an episiotomy. She complained that the video’s editing and the added captions 

were defamatory. And, as stated above, Lollar proved that the video as edited by 

Cummins was false. We overrule the remainder of Cummins’s third and fourth 

issues.

3. Defamation Damages

In her fifth issue, Cummins challenges the damages awarded to Lollar for 

defamation. Regarding the compensatory damages award, her argument under 

this issue relates only to economic damages, and she includes no argument 

relating to any of the other categories of damages that Lollar pled and introduced 

evidence on. We overrule her issue as to the compensatory damages award.100

 99See Tex. R. App. P. 44.1(a).

100See Britton v. Tex. Dep’t of Criminal Justice, 95 S.W.3d 676, 681 (Tex. 

App.—Houston [1st Dist.] 2002, no pet.) (stating that “[g]enerally speaking, an 

appellant must attack all independent bases or grounds that fully support a 

complained-of ruling or judgment”); see also Tex. R. Civ. P. 38.1(i).
59

As for exemplary damages, Cummins argues that Lollar produced no 

evidence of malice and that Cummins’s net worth does not support the amount of 

the award. Cummins did not timely raise these complaints in the trial court, but 

because this is an appeal from a bench trial and these complaints challenge the 

sufficiency of the evidence to support the damages award, she may raise them 

for the first time on appeal.101

Chapter 41 of the civil practice and remedies code provides that generally, 

to be entitled to exemplary damages, a plaintiff must show fraud, malice, or gross 

negligence by clear and convincing evidence.102 “Malice” in this context means 

“a specific intent by the defendant to cause substantial injury or harm to the 

claimant.”

103 Additionally, in a defamation action, the Texas Supreme Court has 

stated that “recovery of exemplary damages are appropriately within the 

guarantees of the First Amendment if the plaintiff proves by clear and convincing 

evidence that the defendant published the defamatory statement with actual 

malice.”

104

 101See Tex. R. App. P. 33.1(d).

102Tex. Civ. Prac. & Rem. Code Ann. §§ 41.002(b), 41.003(a) (West 2015).

103Id. § 41.001(7).

104Hancock, 400 S.W.3d at 66. After this case was tried, the legislature 

enacted a statute providing that a defamation plaintiff may not recover exemplary 

damages without first serving a request for a correction, clarification, or 

retraction. See Tex. Civ. Prac. & Rem. Code Ann. § 73.055(c) (West Supp. 

2014).
60

Clear and convincing evidence is that measure or degree of proof that will 

produce in the mind of the trier of fact a firm belief or conviction as to the truth of 

the allegations sought to be established.105 This intermediate standard of proof 

falls between the preponderance standard of proof applicable to most civil 

proceedings and the reasonable doubt standard of proof applicable to most 

criminal proceedings.106 While the proof must be of a heavier weight than merely 

the greater weight of the credible evidence, there is no requirement that the 

evidence be unequivocal or undisputed.107 In evaluating the legal sufficiency of 

the evidence under the clear and convincing standard of proof, we must 

determine whether the evidence is such that a factfinder could reasonably form a 

firm belief or conviction that its finding was true.108

In determining what amount of exemplary damages to award, the factfinder 

must consider any evidence relating to (1) the nature of the wrong; (2) the 

character of the conduct involved; (3) the degree of the wrongdoer’s culpability; 

(4) the situation and sensibilities of the parties concerned; (5) the extent to which 

 105Tex. Civ. Prac. & Rem. Code Ann. § 41.001(2); Tex. Fam. Code Ann. § 

101.007 (West 2014); U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 

2012); State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010).

106In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); State v. Addington, 588 

S.W.2d 569, 570 (Tex. 1979).

107Addington, 588 S.W.2d at 570.

108K.E.W., 315 S.W.3d at 20; Columbia Med. Ctr. of Las Colinas, Inc. v. 

Hogue, 271 S.W.3d 238, 248 (Tex. 2008), cert. denied, 290 S.W.3d 873 (2009).
61

such conduct offends a public sense of justice and propriety; and (6) the 

defendant’s net worth.109 In our review of an exemplary damages award, we 

must state our reasons for upholding or disturbing the award, and we must 

“address the evidence or lack of evidence with specificity, as it relates to the 

liability for or amount of exemplary damages, in light of the requirements of”

chapter 41.

110

The evidence at trial did not show that Cummins had a negative net worth. 

After the judgment was rendered, Cummins filed an affidavit of indigency, and 

after a contest, the trial court found that she was indigent. But that finding, made 

after the trial court had rendered judgment and Cummins had filed her notice of 

appeal, was irrelevant to the trial court’s earlier determination of the exemplary 

damages award. Furthermore, the other factors that a court considers in 

awarding exemplary damages weigh in favor of the award. As we have 

explained, Cummins posted a flood of statements about Lollar accusing her of all 

manner of serious wrongdoings, including crimes, and she published her 

statements to as wide of an audience as she could, including to numerous law 

enforcement agencies. The statements were designed to ruin Lollar’s 

professional and personal reputation locally and nationally.

 109Tex. Civ. Prac. & Rem. Code Ann. § 41.011(a) (West 2015).

110Id. § 41.013 (West 2015).
62

As to Cummins’s argument that Lollar failed to show malice, we disagree. 

From our review of the record,111 Lollar showed by clear and convincing evidence 

that Cummins acted with malice as that term is used in chapter 41 and with the 

actual malice required under the First Amendment. The evidence supports a 

conclusion that Cummins engaged in a persistent, calculated attack on Lollar 

with the intention to ruin both Lollar’s life’s work and her credibility and standing 

in the animal rehabilitation community. Cummins posted innumerable derogatory 

statements about Lollar impugning her honesty and her competency, and she 

repeatedly and relentlessly reported Lollar to multiple government agencies. The 

comments she made about Lollar leave no doubt that she had a specific intent to 

cause substantial injury or harm to Lollar.

Clear and convincing evidence also supports a finding that Cummins 

published statements on the internet with actual malice. For example, with 

regard to Cummins’s statements about Lollar’s dogs, the evidence supported a 

finding that Cummins was not telling the truth. The trial court’s determination that 

Cummins was not credible was reasonable, and, consequently, we are required 

to ignore her testimony in reviewing the trial court’s actual malice 

 111See New York Times, 376 U.S. at 285, 84 S. Ct. at 729 (considering the 

proof presented of actual malice and stating that the court “must ‘make an 

independent examination of the whole record,’ so as to assure ourselves that the 

judgment does not constitute a forbidden intrusion on the field of free 

expression”) (citations omitted); see also New Times, Inc., 146 S.W.3d at 165 (“a

personal vendetta demonstrated by a history of false allegations may provide 

some evidence of malice, free-floating ill will does not”).
63

determination. 112 And if the trial court believed that Lollar, Kennedy, 

Dr. Messner, and Dr. Jarrett were telling the truth—and it is clear that the court 

did believe that—that determination was reasonable. Their testimony supports 

the trial court’s determination that Cummins published fabricated statements 

about Lollar’s care of her dogs, and, thus, that the statements were made with 

actual malice.

Regarding the episiotomy video, Cummins offered only her own testimony 

to support her version. Lollar, Dr. Jarrett, and Dr. Messner all agreed that what 

Cummins said occurred did not happen. Cummins admitted that she had never 

performed an episiotomy on a bat before, and therefore she had no basis for 

asserting as fact what was at best speculation and at worst total fabrication. But 

she posted her version as fact, not speculation, and then she spread her version 

as far and wide as she possibly could.

The evidence further supports a conclusion that Cummins told as many 

people as she could that Lollar was illegally obtaining and administering 

Isoflurane and rabies vaccines and that she made these representations as facts, 

despite the fact that they were based only on assumptions she had made based 

on limited information. As with Cummins’s statements about Lollar’s dogs, the 

trial court’s determination that Cummins was not credible was a reasonable one, 

and therefore we are required to ignore her testimony in our review. And the trial 

 112See Bentley, 94 S.W.3d at 597–99.
64

court’s determination that Lollar, Dr. Jarrett, and Dr. Messner were credible was 

a reasonable one. Based on these credibility determinations, clear and 

convincing evidence supports the trial court’s finding that Cummins made 

statements on these matters with actual malice. We hold that the record 

supports a finding of malice—both of the malice required for an award of 

exemplary damages under Texas law and of actual malice as required for an 

award of exemplary damages in defamation actions.113

And finally under this issue, Cummins argues that the exemplary damages 

award was excessive. She includes no argument about why the damages were 

excessive other than to say that exemplary damages must be reasonably 

proportional to actual damages. She does not include any argument or citations 

to authority about why the damages were not proportional in this case. 114 

Further, she did not timely raise this complaint in the trial court.115

And although the civil practice and remedies code’s cap on exemplary 

damages116 applied to this case, Cummins neither timely raised this issue in the 

 113See Tex. Civ. Prac. & Rem. Code Ann. § 41.001(7).

114See Tex. R. App. P. 38.1(i).

115See Flores v. Millennium Interests, Ltd., 185 S.W.3d 427, 436 (Tex. 

2005) (stating that proportionality requirements for exemplary damage awards 

are based on the constitution); In re D.T.M., 932 S.W.2d 647, 652 (Tex. App.—

Fort Worth 1996, no writ) (“Even constitutional arguments are waived at the 

appellate level if issues were not before the trial court.”).

116See Tex. Civ. Prac. & Rem. Code Ann. § 41.008(b) (West 2015).
65

trial court nor argued on appeal that the trial court did not apply the cap or did not 

apply it correctly. This court has held that the statutory cap is an affirmative 

defense that must be pled and proved.

117 An argument that the trial court failed 

to properly apply the cap is therefore not a complaint about the sufficiency of the 

evidence to support the award. 118 Because Cummins neither preserved any 

complaint about the cap in the trial court nor raised the issue on appeal, we may 

not consider whether the trial court failed to properly apply the cap. We overrule 

Cummins’s fifth issue as to the exemplary damages award.

Cummins included one other argument relating to the part of the relief 

awarded to Lollar on her defamation claim. In one sentence in the summary of 

her argument, Cummins challenges the permanent injunction included in the 

judgment. She argues, with no citation to authority,119 that “[t]he court’s order is 

also overly broad. It contains prior restraint[,] which is unconstitutional.”

 117See Davis v. White, No. 02-13-00191-CV, 2014 WL 7387045, at *10 

(Tex. App.—Fort Worth Dec. 29, 2014, no pet. h.) (mem. op.) (holding that the 

statutory cap on exemplary damages is an affirmative defense that must be pled 

and proved at trial).

118See Norra v. Harris Cnty., No. 14-05-01211-CV, 2008 WL 564061, at 

*2–3 (Tex. App.—Houston [14th Dist.] Mar. 4, 2008, no pet.) (mem. op.) (holding 

that a complaint on appeal from a bench trial that raises a new legal basis or 

theory for challenging a damages award that is not a complaint about the 

sufficiency of the evidence must be raised in the trial court to preserve the 

complaint for appeal).

119See Tex. R. App. P. 38.1(i).
66

The judgment ordered that “Cummins be permanently enjoined” and 

“ORDERED to immediately and permanently remove from the internet”

statements that appeared on specified web pages. To the extent that the trial 

court’s order required Cummins to remove the statements that the court ruled 

were defamatory, the order is constitutional.

120 But the order is unconstitutional 

to the extent that it permanently enjoins Cummins from making similar

statements in the future.121 Though Cummins can be held responsible for any 

defamatory statements she may make about Lollar in the future, the trial court 

could not issue an order prohibiting her from making them. Thus, to the extent 

that the order may be read to permanently enjoin Cummins from making similar 

statements in the future, we sustain Cummins’s challenge to that part of the 

judgment.

122 We overrule the remainder of her fifth issue.

B. Breach of Contract

Cummins’s last five issues challenge the judgment for BWS for breach of 

contract:

6. Did Appellees present “more than a scintilla” of evidence that any 

of Appellant’s actions meet all four of the following criteria for breach 

of contract?

 120See Kinney, 443 S.W.3d at 93–94.

121See id.

122But see Tex. Const. art. I, § 8 (stating that “[e]very person shall be at 

liberty to speak, write or publish his opinions on any subject, being responsible 

for the abuse of that privilege” (emphasis added)).
67

a. The existence of a valid contract;

b. Performance or tendered performance by the plaintiff;

c. Breach of the contract by the defendant; and

d. Damages sustained by the plaintiffs as a result of the 

breach.

7. Did the trial court err in granting Appelleeʼs [judgment] against 

Appellant for breach of contract?

8. Were Plaintiffs entitled to attorneysʼ fees?

9. Were attorneysʼ fees reasonable?

10. Were Plaintiffs entitled to liquidated damages? Were they 

reasonable, legal?

Cummins argues that the award of damages on the breach of contract 

claim was erroneous as to both Lollar and BWS, but the contract was with BWS 

and not with Lollar, and the trial court found that Cummins should pay only BWS 

$10,000 for breach of contract. And only BWS sought and was awarded 

damages for breach of contract. We therefore overrule as moot Cummins’s 

issues challenging the breach of contract claim as to Lollar.

1. Sufficiency of the Evidence to Show Breach of Contract

In her sixth issue, Cummins argues that BWS did not present legally 

sufficient evidence to support the breach of contract claim. To prove a breach of 

contract claim, a plaintiff must show “the existence of a valid contract, 

performance or tendered performance by the plaintiff, breach of the contract by
68

the defendant, and damages sustained as a result of the breach.”

123 Cummins 

argues that BWS produced no evidence that she breached the contract and 

showed no proof of actual or financial damages.

In its petition, BWS alleged that Cummins breached a provision in the 

intern contract that stated, “It is understood that the data, techniques, results, and 

anecdotal information provided to Trainee during their internship at BWS is 

proprietary and is copyrighted as intellectual property by BWS. Trainee agrees

not to distribute, share, publish, or sell this information without obtaining prior 

written permission from BWS.” [Emphasis added.] BWS alleged that Cummins 

breached these provisions in that:

While [Cummins] was on the Bat World Sanctuary’s premises 

she videotaped and photographed Bat World’s techniques, results, 

data[,] and anecdotal information, often without the knowledge of Bat 

World Sanctuary. After leaving the program [Cummins] began 

posting these videotapes and photographs on the internet without 

Bat World Sanctuary’s permission, thereby breaching her contract 

with Bat World Sanctuary. [Cummins] refuses to remove these 

videotapes and photographs from the internet where they remain as 

of the date of the filing of this suit.

. . . .

[Cummins]’s conduct as described above constitutes breach 

of contract for which [BWS] bring[s] this suit. The breach of contract 

was a producing cause of actual damages to [BWS].

Lollar testified that she believed the contract prohibited Cummins from 

sharing without permission any photographs or videos taken at BWS, regardless 

 123City of The Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 739 

(Tex. App.—Fort Worth 2008, pet. dism’d).
69

of whether the photographs disclosed data, techniques, results, or anecdotal 

information provided to the intern. Much of Lollar’s testimony at trial about 

Cummins’s publishing of photos and videos related to whether Cummins had 

permission to publish them and not on whether they included information covered 

by the contract.

By its language, however, the provision applies only to data, techniques, 

results, and anecdotal information given to intern trainees. It does not prohibit a 

trainee from publishing photographs or videos that the trainee took at BWS if 

those pictures or videos do not fall within the categories protected by the 

contract.

124 As acknowledged by Lollar in her testimony, not all of the pictures 

taken and posted by Cummins contained proprietary or copyrighted information.

BWS introduced into evidence various photographs and four videos that 

Cummins took during her time at BWS and later posted online. The first video 

was of an old Pallid bat. Lollar did not explain what data, techniques, results, or

anecdotal information this video disclosed, and in our review of the video, we 

could not determine that any such information was included in it. No one else 

testified for BWS on that point. Accordingly, there was no evidence that 

Cummins’s publishing of the video was a breach of the contract.

 124See Verhoev v. Progressive Cnty. Mut. Ins. Co., 300 S.W.3d 803, 816 

(Tex. App.—Fort Worth 2009, no pet.) (stating that the plain language of a 

contract must be given effect when the parties’ intent can be discerned from that 

language).
70

The second video was of orphan red bats hanging from a bat hut. Lollar 

testified that the bat hut was a BWS design, but she did not elaborate on whether 

the design was proprietary or in what way the video disclosed protected data, 

techniques, results, or anecdotal information. In our review of the video, we 

could not determine what information protected by the contract was included in it. 

Thus, BWS did not produce sufficient evidence that this video’s publication by 

Cummins violated the contract.

The third video was the episiotomy video. When the video was played at 

trial, it was played without sound. Lollar’s attorney attempted to play the video 

again later to include the sound, but he and Lollar talked over the beginning of 

the video, and almost immediately after they stopped talking, the DVD player quit 

working.

The copy of the video included with the appellate record does contain 

sound, but even with the sound, we cannot say that the video discloses 

information protected by the contract. The video was edited so that only a 

portion of the procedure was shown. Of the parts that were shown, at times, 

nothing but Lollar’s hand can be seen due to the angle of the camera and the 

small size of the bat. Lollar explained very little of what she was doing in the 

procedure. A person watching the video could glean only a hint of Lollar’s 

technique for performing episiotomies. From the combination of an incomplete 

video, misleading captions, an obscured view of the bat, and a lack of narration 

of what was happening, the evidence was not sufficient to show that this video 
71

disclosed data, techniques, results, or anecdotal information protected by the 

contract.

The fourth video was of an orphan red bat being held by Cummins. There 

was no testimony about what protected data, techniques, results, or anecdotal 

information, if any, was disclosed in the video, and we could discern none from 

our viewing of it. Accordingly, BWS produced no legally sufficient evidence of 

how the publication of this video breached the contract.

As for the photographs that were published, there was no testimony about 

what data, techniques, results, or anecdotal information, if any, was disclosed in 

their publication. Many of the pictures appear to be just pictures of bats, and 

some are of Lollar’s dogs. From our review of the photographs produced by 

BWS at trial, we cannot determine what protected information, if any, was 

included in them.

Cummins produced evidence in the form of an email exchange that for 

some of the photographs she published on Facebook, she informed Lollar almost 

as soon as she had published them, and Lollar replied, “Thank you Mary!!”

When Cummins asked at trial if Lollar had ever asked her to remove anything 

that Cummins had published, Lollar stated, “I have never sent any 

communication to you whatsoever after you left our internship.” Lollar produced 

no evidence refuting Cummins’s evidence that she had assented to the

publishing of some of the photographs on Facebook. Cummins thus produced 

uncontroverted evidence that Lollar assented to the publication of those 
72

photographs and did not revoke her assent to the publication of those 

photographs before filing suit.

Regardless of whether Cummins’s publication of videos and photographs 

taken at BWS may have violated some other right of BWS, the evidence at trial 

was not legally sufficient to show a breach of the contract’s prohibition of the 

disclosure of data, techniques, results, and anecdotal information Cummins 

learned while at BWS.

The only other provision that BWS arguably alleged that Cummins 

breached was a provision that, if breached, provided for liquidated damages. In 

closing arguments, Lollar and BWS’s attorney stated, “Your Honor, we request 

that [BWS] be awarded $10,000 in liquidated damages pursuant to the contract 

that was signed by Ms. Cummins.” That part of the contract provided,

In the event that Trainee at any time fails to follow, to the 

satisfaction of BWS, each and every BWS guideline and procedure 

when caring for, treating, or housing bats, then Trainee’s Certificate 

of Completion of Bat World’s training program shall be automatically 

revoked without notice or hearing and Trainee may no longer 

publish, advertise, or communicate to any person the fact that he or 

she was trained by BWS or was certified by BWS. BWS shall have 

sole discretion to determine whether or not the Certificate of 

Completion should be revoked. In the event that Trainee is notified 

in writing that Trainee’s Certificate of Completion has been revoked 

by BWS and Trainee thereafter publishes, advertises or 

communicates to any person the fact that Trainee was trained by 

BWS or was certified by BWS, then Trainee agrees to pay BWS 

liquidated damages in the amount of $10,000, and all attorney’s fees 

incurred by BWS in enforcing this contract. [Emphasis added.]

There is no evidence that BWS issued Cummins a certificate of completion that it 

subsequently revoked in writing and that Cummins then published, advertised, or 
73

communicated the fact that she was trained or certified by BWS. Accordingly, no 

evidence supports a finding that Cummins breached this provision.

Furthermore, BWS did not produce sufficient evidence of damages. At 

trial, Lollar and her attorney had this exchange on the subject of damages:

Q. [I]f somebody was to take photographs of Bat World and 

then publish them without your permission, would there be any way 

for you to put an exact dollar value on the photographs that they 

published without your permission?

A. [I] could only base it on—on some of the information 

that . . . might be shared would be valuable. We—I’ve been hired as 

a consultant . . . in different capacities, and—and if my knowledge is 

freely shared along those lines, then . . . it would decrease the 

amount of value that my consultation would have.

Q. How much have you charged in the past for consultation?

A. $15,000.

Q. Okay. And is $10,000 your estimate of the approximate 

amount that you would charge someone to randomly show these 

videos or pictures?

A. Yes. Yes.

Q. So, in your mind, the $10,000 has some bearing to the 

actual damages that you would suffer if photographs were published 

randomly without your approval?

A. Yes.

Thus, Lollar’s estimate of damages to BWS was based on the extent that 

the pictures or videos disclosed information for which she might otherwise be 

hired to provide in paid consultations. Assuming that Lollar was testifying about 

what she charges for consultations on behalf of BWS, her testimony was that she 

has been hired as a consultant “in different capacities,” but she did not explain 
74

how the videos or photographs disclosed information for which she provides

consulting services. The only video that seems to arguably disclose information 

that might be covered by the contract was the video of the episiotomy. Thus, the 

evidence did not support a finding that Cummins’s publication of the other videos 

and the photographs caused Lollar to suffer damages. And even assuming the 

record supported a finding that Lollar offers consultations on episiotomies, we 

have already held that the video in the record did not disclose proprietary 

information, and thus BWS did not prove that Cummins’s publication of it caused 

damages arising from a breach of the contract.

The evidence provided by BWS to support damages is not sufficient to 

show that it suffered $10,000 in damages from a breach by Cummins of the 

intern contract. We sustain Cummins’s sixth issue.

Cummins’s seventh issue asks whether the trial court erred by granting 

Lollar and BWS judgment against her for breach of contract. Cummins does not 

include any new arguments under this issue, and we therefore need not address 

it.

125

2. Attorney’s Fees for Breach of Contract

Cummins’s eighth and ninth issues challenge whether BWS was entitled to 

attorney’s fees, and if it was, whether the fees awarded were reasonable. She 

 125See Tex. R. App. P. 38.1(i); Gray v. Nash, 259 S.W.3d 286, 294 (Tex. 

App.—Fort Worth 2008, pet. denied) (determining that issues were waived 

because of inadequate briefing).
75

argues that attorney’s fees should not have been awarded because there was no 

breach of contract. BWS’s petition requested an award of attorney’s fees under 

section 38.001 of the civil practice and remedies code.126 BWS did not plead any 

other basis for attorney’s fees. Because we have held that the judgment for 

breach of contract was improper, we must also hold that the award of attorney’s 

fees based on the contract was improper.127

3. Liquidated Damages

Cummins’s tenth and final issue challenges the trial court’s award of 

liquidated damages for breach of contract. We have already held that the 

evidence was insufficient to show that Cummins breached the contract provision 

triggering liquidated damages and that the trial court therefore should not have 

awarded liquidated damages to BWS. Accordingly, we need not address 

Cummins’s tenth issue.

IV. Conclusion

We affirm the trial court’s judgment in part and reverse it in part. Having 

overruled Cummins’s first, second, third, fourth, and seventh issues, and having 

overruled her fifth issue in part, we affirm the trial court’s judgment as to the

award of actual damages and exemplary damages for Lollar. We also affirm that 

 126Tex. Civ. Prac. & Rem Code Ann. § 38.001 (West 2015).

127See MBM Fin. Corp., 292 S.W.3d at 666 (holding that because the court 

rendered a take-nothing judgment on the plaintiff’s breach of contract claim, the 

party could not recover attorney’s fees based on a breach of contract claim under 

civil practice and remedies code chapter 38).
76

portion of the trial court’s judgment ordering Cummins to remove from the 

internet the web pages and defamatory statements specified in the judgment. 

Having sustained her fifth issue in part, we reverse that part of the trial court’s 

judgment permanently enjoining Cummins from making similar statements in the 

future.

Having sustained Cummins’s sixth, eighth, and ninth issues, we reverse 

that portion of the trial court’s judgment awarding damages to BWS for breach of 

contract and attorney’s fees and render judgment that BWS take nothing on its 

claims.

PER CURIAM

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

MEIER, J., concurs without opinion.

DELIVERED: April 9, 2015