Date: 08-16-2022

Case Style:

Cynthia Ann Mitsch Bearden v. Jared Leclair

Case Number: 02-20-00177-CV

Judge: Elizabeth Kerr

Court:

Court of Appeals Second Appellate District of Texas at Fort Worth

On appeal from 235th District Court Cooke County, Texas

Plaintiff's Attorney:

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Defendant's Attorney: Don Cruse Jr.
Derrell L. Comer
Amy Brooks Ganci

Description:

Fort Worth, Texas – Civil Litigation lawyer represented Appellant with being dishonest in business dealings claims against Appellee.

Two horses and three people—Appellant Cynthia Ann Mitsch Bearden,
Appellee Jared Leclair, and Dr. Daniel Dugan—are in the center ring of this case. In
late 2011, Leclair was stabling and training horses for clients that included Bearden
and Dugan. Leclair and Dugan were also horse-investment partners but soon to be on
the outs when, through Leclair as agent, Bearden bought Dugan’s horse Electric
Surge. Intrigue and complications that included the untimely death of another horse,
Topper, led Bearden and Dugan to collaborate on Bearden’s procuring a felony-theft
indictment against Leclair over the money Bearden had paid for Electric Surge. After
the Cooke County D.A.’s office later read messages between Bearden and Dugan, the
indictment was dismissed and Leclair’s records expunged.
Leclair sued Bearden, and a jury found that Bearden had maliciously prosecuted
Leclair and defamed him by publishing statements online accusing him of engaging in
theft, misappropriating client property, and being dishonest in business dealings. The
trial court entered judgment awarding Leclair over $1 million in actual and exemplary
damages. Bearden has appealed, raising evidentiary-sufficiency and excessive-damages
issues. We will affirm.
I. Parties Involved
Jared Leclair: Professional horse trainer and rider; owns and operates a training
and boarding facility in Gainesville called Leclair Reining Horses (formerly Leclair
3
Performance Horses, or LPH); in late 2011 was in financial straits and going through
a contentious divorce from then-wife Heather.
Cynthia Ann Mitsch (“Cam”) Bearden: Amateur horse enthusiast from childhood;
in 2007, began riding competitively in her chosen discipline, reining,
1 after a manyyear hiatus to raise her children; was a client of LPH from 2008 until 2012,
participating in roughly a dozen shows a year; between 2009 and 2012, spent well over
$350,000 buying several horses, including Electric Surge (Surge), from Leclair.
Daniel Dugan, D.D.S.: Another of LPH’s long-time clients and a 50% partner in
L&D Partnership—formed in March 2009 to breed, promote, train, and show reining
horses—along with Leclair, Heather, and, later, a fourth person who does not figure
into this case; in November 2011 was in financial difficulty himself and owed LPH
over $100,000; not a party to this appeal.2
Scott Rodgers (deceased): Yet another LPH client; in Spring 2012 was briefly
aligned with Dugan and Bearden.
3
1
Reining is a discipline in which riders guide horses through a series of highly
detailed patterns. See Jon D.B., Here’s What Goes Into All of Those ‘Yellowstone’ Horse
Reining Scenes, Outsider (Dec. 2, 2021, 5:01 PM), https://outsider.com/entertainment/
tv/yellowstone/reining-horse-scenes-yellowstone-explained/ (describing the “baffling
equine maneuvers” in the Paramount television series Yellowstone).
2
Dugan and Leclair settled their disputes in 2013, and Dugan received a
favorable jury verdict and judgment on Bearden’s third-party fraud claim against him.
3
Bearden had a similarly unsuccessful third-party fraud claim against Rodgers,
who died before trial. Bearden has not appealed the outcome of any of her affirmative
claims.
4
II. Factual Background
The reining-horse world is “tight-knit,” and Cooke County is the epicenter of
that world. Leclair was close, personally, with both Bearden and Dugan, and Bearden
and Dugan themselves became friends through reining competitions and having
horses in Leclair’s facilities, where they would see each other regularly.
A. L&D Partnership begins unwinding; Dugan authorizes Surge’s sale.
Because of Dugan’s and Leclair’s respective financial hardships and the
Leclairs’ pending divorce, in late 2011 Dugan and Leclair began discussing how to
dissolve L&D. In a series of text exchanges on November 14, 2011, Leclair
mentioned that he might have to sell Topper, a partnership horse, because of Leclair’s
mounting bills. Dugan responded, “What ever u have to do” and also authorized
Leclair to sell Surge (“It’s a business decision. From my standpoint u can sell Electric
Surge as well to get what u need. I understand. It’s business”).4
In this same text thread, Dugan reiterated that he knew it was just “business”;
that he trusted Leclair and loved him “like a son”; and that from the start, Leclair had
“absolute total control of the buy or sell process as well as the partnerships.” Dugan
also wrote, “I want to make things a[s] easy for u as possible. If I walk away today, my
credit card has an 18.5k balance and what I owe u. If those balances are paid, I can
resign from partnership and financial obligations and you would [be] free to negotiate
4
Dugan had bought Surge only a month earlier, charging a credit card the
$18,500 purchase price because he “did not have the money.”
5
with Heather.” Leclair testified that Dugan knew that Leclair needed the money and
told him to credit Dugan’s outstanding bill to LPH, a common practice among
trainers and clients and something that Leclair had done previously with Dugan.
B. Bearden buys Surge.
Leclair had occasionally arranged for Bearden to buy other of Dugan’s horses
in the past. In December 2011, Leclair suggested that nearly two-year-old Surge would
be a “good fit” for Bearden, and she agreed to buy him for $18,500. Bearden knew
that Dugan owned Surge.
For tax reasons, the transaction was to be effective January 1, 2012, and
because Bearden needed to transfer some money to cover the purchase price, in
December 2011 she gave Leclair two post-dated checks, one dated January 2 and the
other January 4. Leclair told Dugan in December that he had sold Surge to Bearden,
and Leclair considered the sale to have concluded then through a verbal contract with
Bearden. Bearden had no discussions directly with Dugan, a situation she described as
“typical” when a trainer is brokering a sale.
After January 1, Surge’s recurring monthly charges were switched out of
Dugan’s LPH account and into Bearden’s, and Bearden obtained equine insurance on
Surge with an effective date of January 1, 2012. On the signed application, which was
dated January 1, 2012, she put “Dugan” in the “purchased from” box and
“01/01/2012” as the purchase date. Bearden also gave the insurance company a
signed “statement of health” dated January 1, 2012, showing that she owned Surge.
6
Dugan never complained about the billing switch, nor did he ever demand that
Leclair—or Bearden—return Surge to him. Likewise, between January and May,
Bearden never asked Dugan for anything related to the horse.
LPH’s February 2012 billing statement to Dugan applied the $18,500 credit for
Surge’s sale as Dugan and Leclair had earlier agreed, leaving Dugan with a balance due
of some $85,000.
C. Topper’s training accident and death; insurance dispute.
In the meantime, later in December 2011, Topper died while being trained,
triggering a dispute between Leclair and Dugan over how to handle the proceeds of
Topper’s $37,500 insurance policy and complicating the monetary aspects of their
partnership dissolution.
5
On January 3, 2012, Dugan texted Leclair:
Jared[,] didn’t get much time to talk to u yesterday but wanted to make
sure before we complete the sale of Surge and deposit monies that we
had some definite numbers that we all agree to especially with respect to
the recent loss of Topper and his value. This would help me
tremendously in making some decisions that will affect u and Heather
long term.
The next day, January 4, Leclair deposited Bearden’s two checks and used the money
to pay some of his bills, as he and Dugan had previously discussed. Leclair did not
5
Leclair acknowledged that he deposited the insurance money into his LPH
business account and that Dugan had wanted that $37,500 as part of the partnership
dissolution.
7
interpret Dugan’s text as withdrawing authority to sell Surge, especially since Dugan
knew in December 2011 that Bearden had bought him.
Also in January, Dugan told Leclair—after Bearden’s checks were deposited
and she had possession—that he would not give Surge’s “papers”6 to Leclair until
after they dissolved the L&D partnership. Leclair relayed that to Bearden, and she had
no problem with the delay: it “wasn’t a big deal, the horse is a two-year-old, it wasn’t
going to get shown for a year and a half, and she didn’t [yet] need the papers.” From
that point until the middle of April, the parties’ relationship rocked along as it had.
D. Debacle at a major horse show.
The annual National Reining Breeders Classic (NRBC) in Katy, Texas, is one of
reining’s major competitions. Up until the mid-April 2012 NRBC, Bearden had
referred to Leclair as “like a son” to her, even occasionally lending him money. But
after that competition, their relationship changed “drastically.”
Bearden was riding one of her horses in a higher class of the competition than
she was accustomed to—Leclair compared it to going from playing high-school
6
The American Quarter Horse Association, or AQHA, maintains ownership
records, and when a horse is sold, the owner–seller provides the buyer (or an
intermediary) with the papers—proof of the seller’s ownership—and a transfer form
is sent in to AQHA to show the change in record title. If for some reason a seller
does not provide papers, the AQHA has a system by which the new owner can get
the horse registered in his or her name. (“[Y]ou can send your canceled checks to the
[AQHA] and they will start a process to get you paperwork.”) Bearden knew about
but never initiated that process with the AQHA, nor did she ever ask for Surge’s
papers between January and May 2012.
8
football to college football—and performed poorly enough to score a zero. Sean
Johnson, another trainer, witnessed the event and opined that Bearden “acted very
nervous showing that horse.” Johnson did not recall if Bearden had not previously
shown at a competition as large as the NRBC, “but it certainly did come across that
way”; such shows involve “a lot pressure and a lot of nerves.”
Right after her score, Bearden made it publicly known that she was very upset,
and she acknowledged that her conduct had upset others at the show. Johnson
overheard a “fair amount of yelling and crying to the point where [Leclair] tried to
explain what happened, as they were watching the video [of her ride]. And, ultimately,
he kind of had to walk away.” Leclair described Bearden as “really, really, really mad”;
she blamed him for what she considered an improperly trained horse, in contrast to
both Leclair’s and Johnson’s views that the horse was prepared.
7 According to Leclair,
Bearden went on to say “negative things” about him at the show.
After the NRBC, Leclair mentioned to others that he might have to ask
Bearden to leave his barn and find another trainer, which Bearden characterized as
making her feel “hurt.” Leclair said that when she contacted him after learning of that
possibility, she “scream[ed]” at him.
7
Bearden conceded that she received a zero because she had put two hands on
the reins but testified that the horse “ran off with” her so that it took both hands to
stop him. Johnson disagreed that the horse had run off with her but explained that
using two hands in reining results in a zero score.
9
E. Aftermath of the NRBC: Bearden and Dugan make a secret deal.
In late April 2012, Heather Leclair—still going through the nasty divorce—and
Dugan’s girlfriend, Nanette Combs, both reached out to Bearden and encouraged her
to contact Dugan to get his “insight” and “clarity.” When Bearden and Dugan spoke
several days later, Dugan (according to Bearden) told her that Leclair had not had his
permission to sell Surge. But Dugan also purportedly told Bearden that he would give
her the papers as soon as Leclair paid him the $18,500 and also “some insurance
proceeds”—the $37,500 on Topper’s life.
Bearden agreed that on April 28, 2012, she and Dugan made “a secret side
agreement.” In a text exchange early that morning, Dugan wrote, “I will do what I
have to make that transaction a positive, but do not tell anyone. It [is] a trump I have
with [Leclair].” Bearden texted, “No worries I’m totally with ya!”
At trial, Bearden first said that these texts referred simply to the fact that if
Dugan “got the money from Mr. Leclair for the horse, [she] would get the papers,”
although she could not explain why that would be a secret. Bearden later referred to
Topper’s insurance proceeds as a second component and agreed that she “knew that
Danny Dugan wanted to get more than just the money for Electric Surge from Jared
Leclair.”8
8
After Bearden became his “trump,” Dugan increased his demands. He
acknowledged that he had “wanted to do whatever it took,” “[w]hether it was
criminal, civil,” to get his money.
10
Bearden discussed the situation with trainer Sean Johnson. According to him,
Bearden said that she had bought Surge, that Dugan had the papers, and that Leclair
had acted wrongly by not paying the $18,500 over to Dugan. Johnson did not know at
the time that Leclair had credited Dugan’s bill by that amount, but based on what
Bearden told him, he texted her on May 3—the same day she moved her horses out
of Leclair’s facility9
—that Leclair might have committed a crime. Bearden texted back,
“All ok with [Dugan] but still his ‘trump card’ in the lawsuit against Jared- it’s gonna
get real ugly.”10
From previous conversations, Johnson understood Bearden to be referring to a
deal between her and Dugan for her to be a criminal complainant against Leclair.
Johnson also understood that the arrangement between Bearden and Dugan was for
Dugan to keep Surge’s papers in his name until his civil case against Leclair was over.
9
Bearden texted Dugan on May 4 that Leclair had “had the nerve” to ask her to
pay her final bill to LPH before moving her horses and that she “went off on him!
Should be interesting when I ask for horse papers.” Bearden initially moved her
horses to Tim McQuay’s barn, but in early July 2012 she switched to Johnson’s,
remaining there for only about six months. Both moves occurred without Bearden’s
needing Surge’s papers.
10Dugan sued Leclair on May 22, 2012, for breach of the partnership agreement
and other causes of action arising, in part, from Dugan’s position that Leclair owed
him Topper’s insurance proceeds as well as the proceeds from selling Surge. In
September 2012, while that litigation was ongoing, Dugan simply gave Bearden
Surge’s papers because she needed them to have the horse gelded at Johnson’s, and
Dugan also signed the AQHA transfer form; it showed January 10, 2012 as the sale
date.
11
Bearden agreed that she had “told Sean Johnson about this whole scare tactic
vendetta, and he said, well, in that case, don’t put those papers in your name.”
Bearden told Johnson that she knew that Leclair was authorized to sell the
horse but still intended to make a criminal complaint against him. As for Bearden’s
opinion that Leclair’s malfeasance had consisted of taking her checks but not paying
Dugan in turn, Johnson thought it made no sense for Bearden to accuse Leclair of
“horse theft”: “[Leclair] never stole a horse from her. So if anything, according to the
story I got, the horse, to me had been stolen from [Dugan]. So it should have been
[Dugan] making the criminal accusations.”
Johnson’s overall impression was that Bearden was “mad” at Leclair and
“wanted to punish” him.
F. Bearden pressures Leclair.
On May 4, 2012—the day after telling Johnson about her “trump card” deal
with Dugan—Bearden texted Leclair: “Where are papers on Surge?” Bearden
continued: “you sold me the horse and I want the papers!”; “If [Dugan] still has
papers you need to talk to him”; and “Whatever is going on between you and [Dugan]
does not involve me so you best do whatever it takes to get me those papers very
soon.” This was her first-ever written demand for papers.
On May 7, she wrote, “If I do not have a bill of sale today by 4:00 I will contact
my attorney, sheriffs, NRHA & AQHA- this can get very nasty if that is what you
wish- I do believe it is called FRAUD.”
12
On May 8, Bearden continued, demanding the papers “no later than Wed. I do
not want to pursue legal action against you as it will be very ugly. Rest assured I will
do whatever it takes to get my property”; the “bottom line is you sold me a horse that
you were told not to sell.” Leclair explained, “I told [Dugan] I was selling [Surge] to
you [J]an first because of tax reasons the deal was done then he told me he didn’t
want to sell anything I told he [sic] after my divorce I would give him the money
back[11] . . . he knew the horse was being sold to go towards his bill I told you that.”
Leclair’s text also raised a question: “[W]hy would I sell you a horse . . . that wasn’t for
sale to [someone who] was my best customer that doesn’t make sense.”
Leclair offered to give Bearden her money back, but Bearden responded that
she would “not accept that money, I bought a horse and I want the horse and I will
get it some how” and added, “Do not attempt to give me $$$ for [S]urge.”12 Also on
May 8, Bearden’s lawyer wrote a demand letter to Leclair that read in part:
Ms. Bearden has not received the AQHA Registration Papers for the
colt. She has now learned that the colt’s registered owner is Daniel Dugan. Mr.
Dugan asserts he has not received payment for purchase of the horse.
11This was a reference to a proposal that had evolved for all the partnership
horses to go into Leclair’s divorce, and once the divorce was final, because Dugan still
had a credit-card balance on Surge, Leclair could then raise money (presumably by
selling some horses) and pay Dugan $18,500. Leclair agreed that this differed from the
initial deal to credit Dugan’s outstanding LPH bill, which Leclair did in January 2012,
and that it was inconsistent—“[p]aying him back wasn’t the right choice of words.”
12Bearden could not explain at trial why she did not simply take the
$18,500 from Leclair and pay it over to Dugan if that was truly the holdup on getting
the papers.
13
This is a formal demand to you individually, to secure the necessary
AQHA Registration Papers for Electric Surge and provide them to Ms.
Bearden within twenty-one (21) days from the date of this letter. Your
failure to deliver the documents or [to make] satisfactory arrangements
for Ms. Bearden to[ ] obtain the documents will result in all appropriate
legal recourse available on Ms. Bearden’s behalf. [Emphasis added.]
Bearden knew that Leclair could not comply with that demand without Dugan’s
cooperation. For Dugan’s part, he wrote Heather on May 9, copying Bearden, to lay
out expanded details of everything he expected to receive from the partnership
dissolution and his “plan to continue with a strong arm of legal confrontation as
discussed.” Bearden assured him that she was “in all the way, whatever it takes.”
On May 10, Bearden texted Dugan that Leclair “best get you that 50k really
soon!” and texted Rodgers that Leclair “needs to be aware that on day 22 unless
[Dugan] has 50k”—obviously not just Surge’s $18,500—“I am going straight to DA’s
office.” Day 22 after the demand letter would have been May 30, 2012.
But Bearden moved proactively, texting Dugan on May 14 that the two of them
should meet with the Cooke County District Attorney to “lay the ground work”
before the demand-letter deadline; Bearden viewed the DA as “the scare tactic for
sure.” Dugan agreed, and Bearden arranged for them to meet on May 16 with DA
Janice Warder, who included Assistant DA Ron Poole in their meeting. Based on
Bearden’s and Dugan’s story—that Leclair had sold Surge to Bearden for $18,500 but
did not own the horse and did not give Bearden the papers, and that Leclair did not
14
have Dugan’s permission to sell Surge—Poole presented a case for felony theft to the
Cooke County grand jury a week later.
G. Bearden testifies before the grand jury; Leclair is indicted.
On May 23, 2012, Bearden was the sole grand-jury witness. She testified that
she had bought the horse from Leclair “on, like, January the second,” then “fast
forward to April,” when she learned that “the horse was truly not for sale, and was
not his to sell.” She “first discover[ed] . . . that Jared Leclair did not have authority to
sell” the horse “around the first part of May” and she “had a conversation with the
owner -- the actual owner-of-record of the horse.” Bearden told the grand jury that
Leclair “knew that Dugan was the owner,” and Leclair had “sold [her] a horse that
didn’t belong to him.” Bearden had “possession of the horse,” but “not a title.” A
grand juror asked, “And the original owner wants his horse back?” to which Bearden
responded, “Yes. Exactly.”13
The grand jury returned an indictment for a state-jail-felony offense, charging
that Leclair had “intentionally or knowingly, with intent to deprive Cynthia Bearden,
the owner of property, acquired or otherwise exercised control over current money of
the United States of America, without the owner’s effective consent, and the value of
the property stolen was $1500 or more, but less than $20,000.” See Tex. Penal Code
13Johnson testified that all of this grand-jury testimony was “inconsistent” with
what Bearden had told him. At trial, Bearden conceded that Dugan had never done
anything inconsistent with her owning Surge.
15
Ann. § 31.03(e)(4).
14 A warrant was issued for Leclair’s arrest shortly afterward. He
turned himself in, was handcuffed and booked, spent four hours of a night in jail, and
was released after posting bond.
When the local newspaper reported the story, Bearden texted Johnson: “Seems
that Superstar made the Gainesville paper and not in a good way- not sure of details
but it’s in there!”
H. Bearden has a question planted—and answers it—in an online
reining forum.
Before the sun came up the day after her grand-jury testimony, Bearden sought
an invitation to join a reining-community Facebook group. She got the ball rolling by
texting Joe Curtis, a friend and silversmith whose business Bearden patronized: “So
how do I go on the site, is it on Facebook?” This was two minutes after texting
Dugan, “I will sleep well tonight!! It’s done now let’s see the snake slither!!!” Curtis
then spoke with Paula Parkhill, also involved with reining, and the two of them
invited Bearden to the group.
Admittedly because she wanted to get the story out on social media, Bearden
agreed that she “pre-arranged” to have Parkhill pose a question to the forum: “Has
anyone had a trainer steal from you or sell your horse and then not pay you for it?”
That allowed Bearden to weigh in: “For the record Paula this exact thing has recently
14The statute’s current range is between $2,500 and $30,000. A person
convicted of a state-jail felony can be imprisoned for between 180 days and two years
and fined up to $10,000. See Tex. Penal Code Ann. § 12.35(a), (b).
16
happened to me”—her “X trainer Jared Leclair sold me a horse that he was absolutely
told NOT to sell by the owner and his business partner”; she had “given him every
opportunity to make this right but to no avail”; and she “[h]ate[d] to air dirty laundry
here but feel as though the industry should be aware as to the ‘dirty dealers’ out
there.” She added, “And obviously Mr. Leclair has yet to pay the owner the money I
gave him for the horse!”15
In response to a sympathetic question, Bearden assured the forum’s readers
that she had her canceled check and “ha[d] contacted the owner who will upon
receiving the funds for the horse I purchased along with insurance funds on a horse
that was killed he will release papers to me. It is going to be an ugly legal battle for us
all. Hard to believe someone would do all this to their very best customers!!”
As with Bearden’s grand-jury appearance, this orchestrated Q&A took place
before the demand letter’s deadline.
I. After reviewing Bearden’s and Dugan’s texts, the DA’s office dismisses
the indictment.
At their initial May 16 meeting, Poole had asked Bearden and Dugan to provide
their cell phones for review because Bearden had mentioned some pertinent text
exchanges with Leclair. After Poole later saw certain texts and met with Leclair’s
15Bearden’s post came two weeks after Leclair reminded her that Dugan “knew
the horse was being sold to go towards his bill[;] I told you that.” Bearden
acknowledged at trial that she knew at that time that Dugan and Leclair were involved
in a partnership dispute and that she didn’t know which of them owed the other
money.
17
defense attorney, Poole concluded that he and the grand jury had not been told the
truth. On July 2, 2012, Poole moved to dismiss the charges; he also had Leclair’s
records expunged.
Around this time, Bearden was moving her horses from McQuay’s to
Johnson’s and—anticipating that Leclair would sue her—told Johnson that “she may
have to sue [Dugan] to make it look right.”16
The Cooke County DA’s office considered filing aggravated-perjury charges
against Bearden but for various reasons ultimately decided not to.
III. Procedural Background
This case began on May 22, 2012, when Dugan sued Leclair the day before
Bearden’s grand-jury testimony. By the time it was tried in October 2019, parties and
causes of action had been rearranged and distilled into (1) Leclair’s claims against
Bearden for malicious prosecution and defamation and (2) Bearden’s third-party fraud
claims against Dugan and Rodgers. The jury found in Leclair’s favor on his claims and
against Bearden on hers. The jury assessed malicious-prosecution damages totaling
16Even though Bearden’s trial theory against Dugan was that he had lied and
misled her into initiating criminal proceedings against Leclair by not telling her of his
November 2011 authorization to sell Surge, Bearden and Dugan stayed united in their
goal of destroying Leclair even after the indictment was dismissed. (Bearden to Dugan
on July 3: “Please please Danny don’t weaken on your suit with him- stay strong and
carry on!!”) Bearden was greatly upset, not with Dugan but with the DA’s dismissing
the indictment, telling Dugan on July 8 that she felt “grossly misle[d] by them.” In late
August, Dugan texted her about an attorney who had “agreed to fight Mr. Leclair for
us.” Bearden sued Dugan only after Leclair had sued her.
18
$659,855 ($9,855 for defending the criminal charge, $500,000 in past mental anguish,
and $150,000 for reputational harm); $50,000 for reputational harm from Bearden’s
defamation; and $500,000 in exemplary damages for malicious prosecution.17
After applying a $15,000 Dugan-related settlement credit, the trial court entered
judgment in February 2020 awarding Leclair $694,855 in actual damages and
$500,000 in exemplary damages. Bearden posted a cash bond, and this appeal
followed.
IV. Issues
Bearden raises four issues, which we paraphrase:
• Leclair did not rebut the presumption that Bearden had probable cause
to initiate criminal proceedings, but if he did, the evidence conclusively
proved that she did have probable cause.
• The evidence was insufficient to support one element of defamation
liability: whether Bearden “negligently published a defamatory
statement”—that is, whether Bearden “knew or should have known”
that her statements accusing Leclair of engaging in theft,
misappropriating client property, and being dishonest in his business
dealings were false and potentially defamatory.
• The evidence was insufficient to support compensable reputation and
mental-anguish damages, but if sufficient, the jury’s awards were
excessive.
• If we suggest a remittitur of the damages amounts, the
$500,000 exemplary-damage award should in turn be reevaluated.
17Leclair had asked the jury for $2 million for mental anguish and $1.5 million
for reputational harm.
19
V. Standards of Review
We may sustain a legal-sufficiency challenge—that is, a no-evidence
challenge—only when, among other things, the evidence offered to prove a vital fact
is no more than a mere scintilla, or the evidence establishes conclusively the opposite
of a vital fact. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). In determining legal
sufficiency, we must consider evidence favorable to the finding if a reasonable
factfinder could, and we must disregard contrary evidence unless a reasonable
factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex.
2007); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We indulge “every
reasonable inference deducible from the evidence” in support of the challenged
finding. Gunn, 554 S.W.3d at 658 (quoting Bustamante v. Ponte, 529 S.W.3d 447,
456 (Tex. 2017)).
When reviewing an assertion that the evidence is factually insufficient, we set
aside the challenged finding only if, after considering and weighing all the pertinent
record evidence, we determine that the credible evidence supporting the finding is so
weak, or so contrary to the overwhelming weight of all the evidence, that the finding
should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629,
635 (Tex. 1986) (op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v.
Alviar, 395 S.W.2d 821, 823 (Tex. 1965). This review is not as restrictive in scope as a
legal-sufficiency review, but remains deferential to found facts that are supported by
the weight of the evidence. Jelinek v. Casas, 328 S.W.3d 526, 538 (Tex. 2010); Bellefonte
20
Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744–45 (Tex. 1986). “When evidence
conflicts, the jury’s role is to evaluate the credibility of the witnesses and reconcile any
inconsistencies, and as a general proposition, the jury may believe all or any part of
the testimony of any witness and disregard all or any part of the testimony of any
witness.” Anderson v. Durant, 550 S.W.3d 605, 616 (Tex. 2018) (cleaned up).
VI. Malicious Prosecution: Probable Cause
Of the several elements of a malicious-prosecution claim,18 Bearden challenges
only whether she lacked probable cause to initiate criminal proceedings against Leclair
for felony theft of her money. She argues that Leclair failed to overcome the legal
presumption of probable cause and that, even if he did, her probable cause was
conclusively established as a matter of law.
By its verdict, the jury found—along with the other elements—that Bearden
did not have probable cause, and we agree.
A. Applicable legal principles
The jury was instructed that “the probable[-]cause determination asks whether
a reasonable person would believe that a crime had been committed given the facts as
the complainant honestly and reasonably believed them to be before the criminal
18A plaintiff must establish (1) that a criminal prosecution was commenced
against him, (2) that the defendant initiated or procured it, (3) that the prosecution
terminated in the plaintiff’s favor, (4) his innocence, (5) the absence of probable cause
for the proceedings, (6) the defendant’s malice in filing the charge, and (7) damage to
the plaintiff. Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997).
21
proceedings were instituted.” See Richey, 952 S.W.2d at 517. To foster society’s interest
in encouraging citizens to report crimes, real or imagined, courts “must presume that
the defendant acted reasonably and had probable cause to initiate criminal
proceedings.” Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006).
Rebutting this presumption requires the plaintiff to produce evidence that other
information or motives upon which the defendant acted undercut probable cause—
that is, that some information or motives “demonstrate that [the defendant] did not
reasonably believe [the plaintiff] was guilty of” the crime charged. Id. at 794–
95 (“Suberu was required to produce evidence that Kroger initiated her prosecution
on the basis of information or motives that do not support a reasonable belief that
she was guilty of shoplifting.”). With such evidence, the presumption “disappears,”
and the burden shifts to the defendant to prove probable cause. Akin v. Dahl,
661 S.W.2d 917, 920 (Tex. 1983). The “critical question” is the complainant’s state of
mind. Suberu, 216 S.W.3d at 795.
Events occurring—or information obtained—after a prosecution is initiated are
irrelevant to the probable-cause inquiry. Akin, 661 S.W.2d at 920 (holding that “only”
existing events matter in determining probable cause); Digby v. Tex. Bank, 943 S.W.2d
914, 921 (Tex. App.—El Paso 1997, writ denied) (“Texas courts have consistently
held that probable cause should be evaluated from the perspective of the person or entity who
made the report to law enforcement authorities, at the time that the report was made.”).
Additionally, although a malicious-prosecution defendant’s failure to disclose all
22
relevant facts to the police or a prosecutor can go to malice and causation, it has no
bearing on probable cause. Richey, 952 S.W.2d at 519.
Unless the facts underlying the initiation of a prosecution are undisputed, in
which case probable cause is a question of law, the issue is for a jury to decide. Id. at
518 (“When the facts underlying the defendant’s decision to prosecute are disputed,
the trier of fact must weigh evidence and resolve conflicts to determine if probable
cause exists, as a mixed question of law and fact.”).
B. Analysis
1. Evidence overcoming the presumption of probable cause
Suberu provides one example of the presumption never disappearing. Suberu
lost her case against Kroger because the presumption stood: she had no evidence that
Kroger had a motive to accuse her of shoplifting (such as prior bad relations,
outstanding debt, or the like), nor did she have other information such as Kroger’s
withholding exculpatory evidence or Kroger employees’ collaborating to gin up a
story before going to the manager with their accusation. Suberu, 216 S.W.3d at 795.
In a contrasting case with the opposite result, homeowners who had their
builder criminally charged with misappropriating construction-loan proceeds were
found to have lacked probable cause based on other information that the jury could
have credited. San Antonio Credit Union v. O’Connor, 115 S.W.3d 82, 88–90, 94–95 (Tex.
App.—San Antonio 2003, pet. denied) (op. on reh’g) (noting that jury could have
found that homeowners acted unreasonably based on evidence that they knew that
23
money was “tied up in ‘retainage,’ that the lumber bill was unpaid, not because
[builder] stole the money, but because of a theft from the construction site, and that
the costs associated with the [homeowner-requested] ‘extras’ were consuming money
that should have been used to pay for the originally agreed upon bid”); see also Tranum
v. Broadway, 283 S.W.3d 403, 415–16 (Tex. App.—Waco 2008, pets. denied) (holding
that presumption was rebutted by evidence that defendant “possessed a private
motive to harm” plaintiff); Thrift v. Hubbard, 974 S.W.2d 70, 78–80 (Tex. App.—San
Antonio 1998, pet. denied) (where disgruntled investor initiated criminal complaint
accusing plaintiffs of misapplication of funds and theft, affirming that probable cause
did not exist because jury could reasonably have found that investor knew age of
accounts receivable he claimed to have been deceived about; that he deposited a loanrepayment check knowing it would bounce; that his criminal complaint
misrepresented the source of those repayment funds; and that he knew that plaintiffs
had legitimate business purposes for using receivables he claimed they stole).
Thrift also illustrates the appropriately modest role for an appellate court
reviewing probable cause: even though the reviewing court found “compelling” the
investor’s testimony that he had a good-faith belief that his investment was stolen, it
recognized that the evidence also fairly supported a finding that he was a
“disappointed investor who gambled and lost on a fledgling company.” 974 S.W.2d at
79–80 (“It is reasonable to interpret the evidence in this case as proving that Thrift
filed his criminal complaint against the Hubbards, knowing it was specious, in an
24
attempt to avenge his lost investment or to gain an advantage in the civil litigation
stemming from these same facts.”).
Here, evidence abounded not only that Bearden possessed a private motive to
harm Leclair but also that she possessed other information from which the jury could
find that when she went to the DA and the grand jury, she did not honestly and
reasonably believe that Leclair had stolen $18,500 from her:
• Bearden was publicly upset with Leclair over the NRBC and was hurt (if not
made irate) by his suggestion that she might need to seek another trainer;
• Shortly after, she reached out to Dugan and agreed to be his secret “trump
card” in his efforts to extract favorable terms from Leclair in their partnership
dispute;
• Bearden did not start demanding papers from Leclair until that point, although
she had had possession and had been paying Surge’s bills for months;
• Because Surge was too young to show, Bearden was unconcerned about not
getting papers until later, after L&D issues were resolved;
• Bearden knew all along that Dugan owned the horse;
• Bearden enthusiastically embraced a plan to threaten criminal prosecution as
leverage for Dugan;
• Contrary to what she told the grand jury, Dugan did not want Surge back, and
she did not tell the grand jury that Leclair had offered to return her money;
• Bearden knew that Leclair and Dugan were involved in a partnership dispute
where each claimed that the other owed him money, and she didn’t know
whom to believe;
• Bearden knew of AQHA’s process to obtain papers when a seller is
uncooperative but never initiated that process; and
25
• Bearden told Johnson about her deal with Dugan that she could have Surge but
that Dugan was going to hold the papers until his dispute with Leclair was
over.
The jury heard plenty of evidence—which it found credible—that made the probablecause presumption vanish.
2. Bearden did not conclusively establish her probable cause.
Bearden next argues that even if Leclair produced evidence that rebutted the
presumption, she conclusively proved her probable cause as a matter of law. Again,
we disagree.
Bearden posits two crimes that she reasonably believed Leclair committed:
“theft by taking the purchase money she paid for Electric Surge and failing to provide
her with the horse’s registration papers” and “theft, based on the fact that Leclair sold
her Electric Surge without Dugan’s permission.”
Both sides agree that probable cause is measured against “the crime for which
[the plaintiff] was prosecuted.” Richey, 952 S.W.2d at 517. As opposed to Bearden’s
appellate framing of Leclair’s alleged acts of theft, the grand jury indicted Leclair for
stealing Bearden’s money, with the implication that she got nothing in return.
19 She
told the grand jury that:
• she purchased the horse from Leclair on January 2, 2012 for $18,500;
19Based on trial testimony that, without papers, Surge was worth only $300 to
$500, Bearden tells us that she believed she “received practically nothing in return.”
[Emphasis added.] But she said nothing to the grand jury about any diminished value.
26
• she learned in April or “around the first part of May” that the horse was not
Leclair’s to sell;
• she had a conversation with the “actual owner-of-record,” who told her that he
had never given Leclair authority to sell the horse;
• Leclair knew that Dugan owned the horse;
• she had a text message revealing that “Leclair knew that Dugan had never given
him permission to sell the horse”;
• Leclair sold Bearden a horse that didn’t belong to him, and he received money
for it;
• she was paying the bills on the horse, but Dugan still owned the horse “as far
as the title goes”; and
• Dugan wanted his horse back.
Setting aside the disingenuousness of many of these statements—and
Johnson’s testimony that what Bearden swore to the grand jury was “inconsistent”
with what she had told him—Bearden knew much more that she did not tell the grand
jury: Bearden was Dugan’s “trump card” in his campaign to get the most out of L&D
and Leclair; Leclair had reminded Bearden that Dugan knew that Surge “was being
sold to go towards his bill I told you that”; Dugan was going to hold Surge’s papers
until he and Leclair settled up, at which point Bearden would get them; and Bearden
knew that she could always go through the AQHA to get the papers even if Dugan or
Leclair never cooperated.
In short, Bearden knew that she paid $18,500 for a horse and that her
ownership was never in doubt. That alone shows lack of probable cause to accuse
27
Leclair of felony theft of money, although there’s something even more fundamental:
Bearden did not tell the grand jury that Leclair had offered her money back, an offer
that would surely torpedo any honest and reasonable person’s belief that a theft had
been committed.
As for Leclair’s alleged crime of selling a horse without Dugan’s permission—
which strikes us as something Dugan would prosecute—the jury had ample evidence
that Bearden did not honestly and reasonably believe that either. Even if Leclair had
flouted Dugan’s request to hold up on completing and depositing the funds from
Surge’s sale until they agreed on other partnership matters, Bearden knew that Dugan
never asked her for the horse back and knew that from every indication he was
perfectly happy that she had been paying insurance and expenses since January. A jury
could reasonably believe that Dugan’s real beef with Leclair was whether Dugan
should have gotten the $18,500 so that he could pay off the credit card he’d used to
buy Surge versus Leclair’s giving Dugan an invoice credit, which didn’t help the cashstrapped Dugan. And a rational jury could have found that the “authorization” issue
surfaced as a convenient pressure point only after Bearden became agitated with
Leclair in April and only after both Dugan and Bearden—for different reasons—
seized upon a joint opportunity to get at Leclair.
Rather than acknowledging the evidence that was properly before the jury,
which in a no-evidence review we are bound to credit, see, e.g., Gunn, 554 S.W.3d at
658, Bearden points to Leclair’s ostensible trial admission of his theft as conclusive
28
proof of her probable cause, relying on First Valley Bank of Los Fresnos v. Martin,
144 S.W.3d 466 (Tex. 2004). There, a secured lender had complained to the
authorities—“which it had every right to do”—that it could not locate either its
debtor or most of the collateral cattle, although the information the lender provided
was inaccurate and incomplete in certain respects. Id. at 468–70. The district attorney
indicted Martin for a different crime: selling other cattle and keeping the proceeds, id.
at 469; “nothing the Bank reported or failed to report caused the indictment relating
to Martin’s cattle sale,” id. at 472. Martin was arrested, but the charges were ultimately
dropped. Id. Reversing judgment for Martin on his malicious-prosecution claim, the
supreme court noted that, at trial, Martin had admitted all the objective elements of
the crime for which he was indicted and thus could not establish lack of probable
cause. Id. at 470. Any errors on the lender’s part were therefore immaterial. Id.20
Bearden urges that Leclair himself, like Martin, conclusively established her
probable cause by admitting at trial all the elements of theft: acquiring or exercising
control over property (“appropriating” property) without the owner’s effective
consent (“unlawfully”) and with the intent to deprive the owner of the property. See
Tex. Penal Code Ann. § 31.03(a), (b)(1). She points to Leclair’s acknowledging that he
20The supreme court also observed that “[n]o credit system in the world can
last long if creditors are punished for lawfully demanding their money back,” First
Valley Bank of Los Fresnos, 144 S.W.3d at 468, as if to suggest that secured lenders have
some sort of automatic “super presumption” of probable cause. The situation at hand
is much different.
29
deposited her checks into his bank account (thus “appropriating” her money), that he
spent the money to pay personal debts, that Dugan had told him the day before he
deposited the checks to hold up on completing the sale and depositing monies, and
that Leclair ignored Dugan, depositing and spending the money anyway. Bearden also
refers us to Leclair’s affirmative answer to an “if–then” question: “[I]f Dr. Dugan told
Ms. Bearden that you did not have authority to sell Electric Surge, then she had every
right in the world to file a criminal charge against you; isn’t that true?”21
But Bearden’s position presents a cramped reading of Martin that fails to take
into account the facts on the ground here. Based on the evidence before it, a
reasonable jury could have believed that Bearden and Leclair had entered a verbal
contract in December 2011. Bearden had given Leclair two post-dated checks in
December, to allow her time to move funds around before January 2 and January 4,
the dates of the checks. She applied for insurance to be effective January 1, 2012 and
represented that as the sale date, with Dugan as the seller. She started paying Surge’s
expenses to LPH in January 2012, and Dugan stopped. She wasn’t concerned about
21This question came during a lengthy cross-examination about Leclair’s
deposition testimony from over four years earlier. His September 2014 deposition
took place before Bearden’s grand-jury testimony was ordered disclosed and before
Leclair learned that she had complained about a theft of money, not papers. Leclair
also did not know, when he was deposed, that Bearden was the only grand-jury
witness and was the only one calling him “a liar and a thief” on social media; nor did
he know the particulars of the “trump deal” between Bearden and Dugan, all of which
later-revealed information was reiterated on redirect to put matters in context. We do
not consider his “admission” to be quite the “gotcha” statement that Bearden
proposes.
30
the papers because Surge wasn’t old enough to show. She and Dugan saw each other
often at Leclair’s facility, and nothing hinted that Dugan didn’t consider the horse to
now be Bearden’s. Dugan said nothing to Bearden for four months about having
retracted his authorization—assuming that was even possible on January 3 when he
asked Leclair, who considered the deal completed in December, to hold up on it.
22
Everyone acted as if the sale was complete by January 1, 2012, and it’s undisputed that
Dugan never asked for the horse back.
Bearden had four months’ knowledge of all these facts before she and Dugan
began collaborating and before Dugan told her that Leclair allegedly wasn’t authorized
to sell Surge. It’s true that a complainant does not have a duty to make inquiry if a
crime seems reasonably to have been committed, see Suberu, 216 S.W.3d at 794, but by
the same token, a complainant cannot ignore her own “lived experience” of events.
By urging us to examine only the bark and maybe a few leaves on one tree in a vast
forest, Bearden would have us ignore the many other trees swaying all around vying
for evidentiary attention. Bearden did not conclusively prove her probable cause as a
matter of law.
22As Leclair put it at oral argument, Dugan’s text didn’t create a “time machine”
to revoke authority for a sale that had already occurred; just because Dugan wanted to
negotiate L&D’s dissolution differently after Topper died did not make Leclair’s
actions retroactively criminal.
31
3. Factual sufficiency on lack of probable cause
Bearden’s first issue is framed as involving “no evidence and/or factually
insufficient evidence,” but her briefing centered on legal sufficiency. Although
Bearden concluded her discussion with one sentence that “[a]lternatively” mentioned
factual insufficiency, she did not brief it. Because her treatment was “cursory,” we will
similarly “follow [Bearden’s] lead in the depth of detail we give to it.” Durant v.
Anderson, No. 02-14-00283-CV, 2020 WL 1295058, at *10 (Tex. App.—Fort Worth
Mar. 19, 2020, pet. denied) (mem. op. on remand). But see Gillespie v. Nat’l Collegiate
Student Loan Tr. 2005-3, No. 02-16-00124-CV, 2017 WL 2806780, at *2 (Tex. App.—
Fort Worth June 29, 2017, no pet.) (mem. op.) (declining altogether to address factualsufficiency claim raised only “in passing”).
Bearden did offer evidence that competed against Leclair’s; she testified that
she had believed Dugan when he told her that he had not authorized Leclair to sell
Surge and that Leclair had not paid over the proceeds to Dugan, meaning that Dugan
was holding the papers—which she said were ultimately Leclair’s responsibility to
obtain—until Leclair paid him. Leclair’s countervailing evidence, which we have
detailed at length, was factually sufficient to support the jury’s finding that Bearden
lacked probable cause. We consider all the evidence in a factual-sufficiency review but
give weight to the jury’s determination of witness credibility. Durant,
2020 WL 1295058, at *11 (citing cases). The evidence that Leclair introduced was
“not so weak that it was not worthy of belief.” Id. Viewing the record as a whole, the
32
evidence supporting the jury’s no-probable-cause finding was not so against the great
weight of the evidence that upholding it would be manifestly unjust. See Cain,
709 S.W.2d at 176.
We overrule Bearden’s first issue.
VII. Defamation
The jury found that Bearden published defamatory statements accusing Leclair
of engaging in theft, misappropriating client property, and being dishonest in his
business dealings. It also found that Bearden knew or should have known, in the
exercise of ordinary care, that the statements it found defamatory were false and had
the potential to be defamatory. See D Mag. Partners, L.P. v. Rosenthal, 529 S.W.3d 429,
434 (Tex. 2017) (laying out defamation elements). In the damages question, the jury
was instructed that statements that Leclair “was dishonest in his business practices or
engaged in criminal conduct are defamatory per se.”
Bearden challenges the “knew or should have known” factor of a defamation
claim, arguing that she conclusively proved that she took reasonable steps to verify
the accuracy of her statements before publishing them and thus was not negligent. In
her reply brief, she adds that her statement that Leclair “was absolutely told NOT to
sell by the owner and his business partner” was not a false statement “as a matter of
law.”23
23Bearden raised this argument for the first time in her reply brief, in response
to Leclair’s briefing that she not only should have known but did know that her
33
This was the Facebook question Bearden arranged for on May 24, 2012:
After a number of people responded, Bearden weighed in:
statements were false. Bearden’s opening brief headed her Issue Two discussion
thusly: “There is no evidence and/or factually insufficient evidence that Bearden
knew or should have known that her allegedly defamatory statements were false.”
Although the question is a close one whether we should consider her late-briefed
argument, in the interest of thoroughness we will do so. Cf. Prescription Health Network,
LLC v. Adams, 02-15-00279-CV, 2017 WL 1416875, at *7 (Tex. App.—Fort Worth
Apr. 20, 2017, pet. denied) (mem. op.) (declining to interpret issue complaining that
arbitrator “exceeded its authority” as fairly including reply argument that arbitrator did
not issue a “reasoned award”).
34
A. Falsity versus substantial truth (reply-brief argument)
Bearden’s reply brief argues that the “absolutely told NOT to sell” part of her
post was true, or at least substantially so. See KBMT Operating Co., LLC v. Toledo,
492 S.W.3d 710, 714 (Tex. 2016) (holding that a statement need not be “perfectly true;
as long as it is substantially true, it is not false”). But beyond our disagreement with
that proposition based on all the facts we have already discussed, and beyond the fact
35
that her post(s) said more than that one thing, it was Bearden’s burden to raise and
prove substantial truth as an affirmative defense.
Although public figures and private plaintiffs suing media defendants on
matters of public concern must prove falsity,24 see Brady v. Klentzman, 515 S.W.3d 878,
883 (Tex. 2017); Bentley v. Bunton, 94 S.W.3d 561, 586 (Tex. 2002), at common law a
presumption of falsity exists, making it a defendant’s burden to prove otherwise.
Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995) (“In suits brought
by private individuals, truth is an affirmative defense to slander.” (footnote omitted));
Van Der Linden v. Khan, 535 S.W.3d 179, 198–99, 199 n.10 (Tex. App—Fort Worth
2017, pet. denied) (recognizing truth as affirmative defense in defamation actions
involving private individuals where no constitutional issues are implicated); see also
Knox v. Taylor, 992 S.W.2d 40, 53–54 (Tex. App.—Houston [14th Dist.] 1999, no pet.)
(rejecting defendant–appellant’s argument that jury’s negative answer to question on
substantial truth was against great weight and preponderance of evidence).
Jury Question 11 embedded the falsity presumption, asking whether Bearden
knew or should have known that her statements “were false,” the only predicates being
questions on publication and defamatory meaning. Bearden did not propose a
preliminary question and instruction asking the jury to assess falsity—a necessary
finding if it was Leclair’s burden—nor did she object to its absence. See Comm. on
24From our review of the record, Bearden did not contend that Leclair was a
public figure.
36
Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Business, Consumer,
Insurance & Employment PJC 110.4 & cmt. (2018) (recommending pattern question on
falsity that “should be used when the plaintiff is required to establish that the
publication is false”). Nor did Bearden ask for a question on substantial truth, an
affirmative defense she would have had to prove. See id. PJC 110.8 & cmt. (setting out
question on substantial truth to “be submitted only in cases when the common-law
presumption of falsity applies; in such cases substantial truth is an affirmative
defense”). If, as Bearden asserted in her reply brief, she “has always maintained the
post was not false,” we would expect to find pleadings, requested instructions and
questions, or charge objections so maintaining, but we have not.
25
When it comes to substantial truth, then, at this point we think the horse is out
of the barn, and we reject Bearden’s argument on this defensive matter.
B. Knew or should have known
Bearden argues that the evidence conclusively proved that she lacked the
requisite state of mind for defamation liability because she published only “what [she]
knew at the time to be true” and because she took reasonable steps to verify the truth
before publishing her Facebook comments. As with her narrow discussion of the
probable-cause evidence, a step back shows that these arguments, particularly when
25Even Bearden’s opening brief referred to “the undisputed facts, as Bearden
understood them, were that Leclair had indeed sold her Electric Surge without Dugan’s
permission.” [Emphasis added.]
37
considering the timing and content of her Facebook comments as a whole, lack
conclusive supporting evidence.
The applicable level of fault in this case is negligence. In re Lipsky, 460 S.W.3d
579, 593 (Tex. 2015) (orig. proceeding) (noting that although a public figure or official
must prove actual malice, “[a] private individual need only prove negligence”); Bedford
v. Spassoff, 485 S.W.3d 641, 648 (Tex. App.—Fort Worth 2016), rev’d in part on other
grounds, 520 S.W.3d 901 (Tex. 2017). A plaintiff such as Leclair must prove that (1) the
defendant knew or should have known that the statement was false and (2) the
publication’s content would warn a reasonably prudent person of its defamatory
potential. See Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809, 819–20 (Tex. 1976).
Negligence in this context also asks whether the defendant acted reasonably in
checking the truth of the communication before publishing it. Scripps Tex. Newspapers,
L.P. v. Belalcazar, 99 S.W.3d 829, 837 (Tex. App.—Corpus Christi–Edinburg 2003,
pet. denied); see also Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.,
416 S.W.3d 71, 85–86 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (holding no
evidence of negligence where reporter cited multiple consistent sources and plaintiff
did not return messages asking for comment).
Based on the same facts we laid out above in Section VI.B. in analyzing
probable cause, the jury could have reasonably found that the one–two punch of
Bearden’s Facebook post was defamatory because she knew it was false, as opposed to
her not taking reasonable steps to confirm its accuracy (“should have known”). But
38
even if we follow Bearden’s lead and focus on her assertion that “the evidence
conclusively establishes that Bearden took reasonable steps to verify [her post] before
she published it on Facebook,” we are not persuaded.
Bearden maintains that “[b]ecause Dugan (among others) told [her] that Leclair
did not have permission to sell Electric Surge, and further because Leclair, when
confronted, did not deny it, Bearden exercised reasonable care before publishing the
May 24, 2012 Facebook post as a matter of law.” The confrontation to which Bearden
refers is the May 8 text exchange we quoted in Section II.F. and reproduce below. It
started with her demand for papers by that Wednesday:
Contrary to Bearden’s contention that in response to that last text Leclair did
not deny selling Surge without permission, the entirety of his same-day reply, below,
corroborates that (1) the sale took place on January 1 and (2) he and Dugan had
39
agreed to apply the proceeds to Dugan’s LPH bill, something that carries with it at the
very least an implicit denial of an unauthorized sale:
When we consider the evidence of Bearden’s not demanding papers until May,
her secret deal to work with Dugan, and the pleasure she took not only in
contemplating but in attempting to orchestrate Leclair’s downfall, her argument that
Leclair’s alleged nondenial meant that she had satisfied her duty of reasonable care as
a matter of law is unconvincing. The jury heard testimony about the context of
Bearden’s demands and could reasonably have concluded that she was not acting in
good faith but was instead trying to force Leclair into a better deal for Dugan or to set
him up for the criminal charges that soon followed. Regardless, her texts with Leclair
did not conclusively establish her reasonable care as a matter of law.26
We overrule Bearden’s second issue.
26As with probable cause, Bearden’s argument on defamation ends with a
throw-away line about factual insufficiency, which we reject for the same reasons
mentioned in Section VI.B.3. The jury’s finding was not against the overwhelming
weight of the evidence.
40
VIII. Damages
Bearden’s third issue attacks the reputation and mental-anguish damages on
legal-sufficiency grounds or—if need be—as excessive and warranting a suggestion of
remittitur; her fourth and final issue concerning exemplary damages comes into play
only if her third issue succeeds. Although Bearden again mentions factual sufficiency
in passing, she does not analyze it and focuses entirely on legal sufficiency. “These
extraordinary damage awards must be reversed in their entirety because there is no
evidence that Leclair suffered anything close to compensable injury under any damage
measure. . . . At most, the evidence supporting the awards is factually insufficient.”
Bearden’s discussion went on to evaluate only legal sufficiency for both types of
damages. We will do likewise, looking only to see if more than a scintilla of evidence
supports the jury’s assessment that Leclair is entitled to compensation. See, e.g., Sw.
Energy Prod. Co. v. Berry–Helfand, 491 S.W.3d 699, 713 (Tex. 2016) (applying usual noevidence test to damages challenge). More than a scintilla exists. Nonetheless, we
would find the evidence factually sufficient if called upon to weigh it under that
standard.
We keep in mind that noneconomic damages compensate for noneconomic
harm and “are not amenable to calculation with ‘precise mathematical precision.’”
Anderson, 550 S.W.3d at 618 (quoting Brady, 515 S.W.3d at 887).
41
A. Legally sufficient evidence
1. Reputational harm
Reputation damages are available for claims of malicious prosecution and
defamation, see id. at 621, and the legal standards for recovering reputation damages
for both claims are the same, see Restatement (Second) of Torts § 670 cmt. A (1977).
Generally speaking, two types of evidence can support an award of reputation
damages: direct evidence that “people within the community ‘thought less of’ the
plaintiff,” and “evidence of a lost job or business opportunity.” Mem’l Hermann Health
Sys. v. Gomez, No. 19-0872, 2022 WL 1194374, at *9 (Tex. Apr. 22, 2022) (citing Brady,
515 S.W.3d at 887, and Anderson, 550 S.W.3d at 622–23, respectively).
More than a scintilla of evidence exists that Leclair’s reputation suffered as a
result of his wrongful indictment and Bearden’s defamation. Johnson testified that
Leclair had a good professional reputation that was on the rise immediately before the
events in question and that Johnson, a competitor in the training business, would even
seek Leclair’s help with his own clients. But after the indictment, Johnson was
reluctant to suggest that any of his clients buy a horse from Leclair, saying that “it’s
hard . . . for you to tell a client it’s a good idea, let’s go down there and buy a horse,
and . . . possibly be [in] the same situation.”27 Johnson observed that Leclair had fewer
27Trainers often also broker buying and selling horses. An accusation of horse
theft would be self-evidently damaging to a trainer’s reputation, and Leclair testified
directly that being accused of horse thievery would “be detrimental to a horse
trainer.”
42
horses to show at competitions after the indictment, something that Mike Seay also
witnessed.
28 Johnson “felt you needed to distance yourself from -- from [Leclair] with
everything that was going on. It was not -- it was not good in the public eye.”
Leclair noticed a difference in how people reacted to him at horse shows, as
well as experiencing a sharp drop-off in the summer of 2012 in the number of horses
clients were sending him for training, down from around 30 to roughly 15. Although
Leclair went on to win an impressive amount of prize money that offset his decreased
boarding and training revenues, after the indictment his gross income experienced a
“significant drop” on the order of around $300,000 in 2012, and it took him “a couple
of years” to build it back up. Leclair testified that “the indictment was the reason” for
that decrease. As Anderson instructs, reputation damages can be shown by a lost job or
business opportunity. 550 S.W.3d at 622. Leclair also connected the fact of people
staying away from him at horse shows to finding out that Bearden was posting things
on social media.
Although Bearden contends that Leclair needed to present a witness who had
read the Facebook post or who didn’t do or stopped doing business with him because
of the indictment, Texas law does not require such specific proof for proving general
28Bearden argues that Seay’s testimony about Leclair’s having fewer customers
to haul during this period proved only that Leclair was having staffing issues. But
when asked why Leclair was hauling only one nonprofessional client and was needing
Seay for help at one particular show, Seay attributed it to both scenarios: “He didn’t
have the customers to haul and he didn’t have the help.”
43
noneconomic harm. For example, Brady was a defamation action brought by the son
of a chief sheriff’s deputy against a reporter and newspaper for an article portraying
Brady as unruly and intoxicated when pulled over and suggesting that he was a
criminal who used his father’s connections to skirt the charges against him.
515 S.W.3d at 881–82. Affirming the court of appeals’ remand for a new trial, the
supreme court disagreed with the media defendants’ argument for rendition on
grounds that there had been legally insufficient evidence at trial of reputational harm.
Id. at 886–88. The supreme court noted that “there must be evidence that people
believed the statements and the plaintiff’s reputation was actually affected.” Id. at
887 (citing Burbage v. Burbage, 447 S.W.3d 249, 261–62 (Tex. 2014)). And Brady
presented such evidence:
One witness described the plaintiff as having a reputation for being a
“good kid” before the article was published. The plaintiff’s father
testified that after the article, he met “people in the community that had
a negative impression” of him. That some people thought less of the
plaintiff after the article was published was direct proof of injury to the
plaintiff’s reputation.
Anderson, 550 S.W.3d at 621–22 (summarizing the evidence in Brady) (cleaned up).
In Anderson, the supreme court held that the plaintiff presented more than a
scintilla of evidence that kickback allegations damaged his reputation where a
prospective employer, Hiley, testified that Anderson had had a “really good
reputation,” but after hearing the allegations, Hiley would not consider hiring him for
any position unless Anderson cleared his name. Id. at 622–23. That evidence was “not
44
merely hypothetical or speculative, but directly reflect[ed] Hiley’s opinion about
Anderson’s character.” Id. at 623. “Conclusive proof” of a lost opportunity is not
required, “but rather a reasonable inference that Anderson’s reputation changed for
the worse. This evidence is enough to cross the legal-sufficiency threshold regarding
the existence of reputation damages.” Id. Here, Johnson’s testimony was comparable
in his expressed reluctance to send business Leclair’s way in the wake of the
indictment.
We hold that there is some evidence, as in Brady and Anderson, that Leclair
suffered reputational harm.
2. Mental anguish
Bearden next argues that the evidence is legally insufficient to support any
mental-anguish damages. To support such an award, the evidence must show both the
existence of compensable mental anguish and justification for the amount awarded.
Emerson Elec. Co. v. Johnson, 601 S.W.3d 813, 840 (Tex. App.—Fort Worth 2018) (citing
Hancock v. Variyam, 400 S.W.3d 59, 68 (Tex. 2013)), aff’d on other grounds, 627 S.W.3d
197 (Tex. 2021). The record must provide either direct evidence of the nature,
duration, and severity of a plaintiff’s mental anguish, thus establishing a substantial
disruption in his daily routine, or evidence of a high degree of mental pain and distress
that exceeds mere worry, anxiety, vexation, embarrassment, or anger. Anderson,
550 S.W.3d at 618–19 (citing Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.
1995)).
45
Although corroborating evidence of mental anguish, including from a spouse
or friend, can be helpful in determining evidentiary sufficiency, a plaintiff’s testimony
alone can suffice. See id. at 619–20 (contrasting Bentley, 94 S.W.3d at
576 (corroborating testimony from wife and a friend), with Serv. Corp. Int’l v. Guerra,
348 S.W.3d 221, 233 (Tex. 2011) (testimony only from plaintiff)); see also Gordon v.
Redelsperger, No. 02-17-00461-CV, 2019 WL 619186, at *2 (Tex. App.—Fort Worth
Feb. 14, 2019, no pet.) (mem. op.) (affirming award for past physical pain and mental
anguish where only testimony was from plaintiff and wife about “the impact and
consequences of the assault”).
Here, the jury heard evidence of mental anguish from Leclair himself and from
Seay, a pastor who ministered at and himself participated in horse shows and
interacted with Leclair both before and after his arrest, thus enabling him to observe
Leclair’s differing states of mind.
Leclair testified that in the weeks after his indictment and arrest, he experienced
dry heaving, diarrhea, “involuntary muscle twitches” that scared him “to death,”
sleeplessness, and anxiety so intense that he sought medical help.29 While the criminal
case was still pending, Leclair’s younger brother died, and Leclair felt unable to talk
with his grieving parents about what had happened to him, keeping it to himself and
feeling “numb.” Leclair saw a counselor for over a year, became close with Seay,
29A doctor prescribed medication, which Leclair took only once because its side
effects reduced the reaction time he needed.
46
described himself as an emotional “wreck,” and even contemplated suicide—a
thought he pushed aside because he knew it would further devastate his parents.30
Leclair felt isolated and reclusive: “you can always tell when you go to a horse show
and you’re around everybody, and when you’re walking by and you kind of see
someone look at you, and then you can tell when they’re talking about you.” Although
Leclair was going through a divorce and experiencing other stressors during this
period, he characterized his indictment and arrest as “significantly more traumatic” to
his emotions, substantially disrupting his daily routine and causing him a high degree
of mental pain and stress that he had never before experienced. We view this
testimony as substantively similar to the Anderson plaintiff’s (uncorroborated)
testimony, which was held legally sufficient. Anderson, 550 S.W.3d at 620 (discussing
plaintiff’s testimony about changed demeanor, trouble sleeping, and treatment for
anxiety and depression after being accused of taking kickbacks).
As for Seay, before the arrest he had heard of Leclair’s impending divorce and
reached out, as a casual acquaintance, to offer his help (which Leclair did not take him
up on) and became better acquainted with Leclair in the weeks leading up to the
arrest. An “extremely emotional” Leclair called Seay right after he bonded out of jail.
Leclair’s “voice was cracking and breaking,” and during their almost-hour-long
conversation, he talked to Seay about his “nightmare” experience. Seay followed up
30When deposed, Leclair did not mention suicidal ideation as a manifestation of
his mental anguish.
47
by calling Leclair the next day and thereafter would counsel him about “his fear[], his
depression” several times a week. After Leclair brought up the thought of suicide,
Seay began calling daily to check on his welfare, and if Leclair was unreachable, Seay
would call two other people at Leclair’s barn and ask how Leclair was doing. During
this time, Leclair expressed to Seay that he felt “no hope”—“his business was gone.
He felt that his reputation was ruined.”
This testimony is some evidence of compensable mental anguish resulting from
malicious prosecution and is certainly not “so contrary to the overwhelming weight of
all the evidence, that the finding should be set aside and a new trial ordered.” Durant,
2020 WL 1295058, at *8.
B. Amount of damages
For past reputational harm, the jury awarded Leclair $150,000 for the malicious
prosecution and $50,000 for Bearden’s defamation. For malicious prosecution, the
jury also awarded $500,000 for Leclair’s past mental anguish, reduced to $485,000 in
the judgment. Bearden assails these amounts as “exorbitantly excessive.”
We review an excessiveness challenge for factual sufficiency, something that is
committed to our exclusive jurisdiction, Anderson, 550 S.W.3d at 620, and that is
“highly deferential to the jury’s findings,” Gordon, 2019 WL 619186, at *4. With “few
specific guideposts to follow,” our task is “even less certain when reviewing the
factual sufficiency of nonpecuniary damages,” id., and the “discretionary nature of
[noneconomic-damage] awards . . . dulls the allure of remittitur,” Durant,
48
2020 WL 1295058, at *34. Still, certain parameters are instructive, including awards in
similar cases. Anderson, 550 S.W.3d at 620–21, 623.
In keeping with the briefing’s structure, we discuss mental anguish first.
1. Mental anguish
Juries must necessarily have a measure of discretion in assessing damages given
“the impossibility of any exact evaluation of mental anguish,” although they “cannot
simply pick a number and put it in the blank.” Bennett v. Grant, 525 S.W.3d 642,
648 (Tex. 2017) (quoting Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607,
614 (Tex. 1996)). Rather, the touchstone is an amount that “would fairly and
reasonably compensate” for the distress, and evidence must exist that the amount
found is indeed fair and reasonable. Saenz, 925 S.W.2d at 614 (holding no evidence
that plaintiff suffered mental anguish or that amount awarded would be fair and
reasonable where only evidence was plaintiff’s testimony that she “worried . . . a lot”
about who would pay for her anticipated lifetime medical expenses and whether she
and her husband could keep their home).
Mental-anguish awards in wildly differing amounts have been upheld
depending on the underlying claim. In Anderson, involving a defamatory whisper
campaign about kickbacks but no criminal prosecution, the supreme court “pointed to
cases upholding past mental-anguish awards of $20,000, $25,000, $35,000, and
$50,000, stating that these cases involved similar or more egregious defamatory
behavior.” Durant, 2020 WL 1295058, at *33 (citing Anderson, 550 S.W.3d at 619,
49
620 n.65). Then again, mental-anguish awards in amounts ranging from $100,000 to
$250,000 have been upheld in other defamation cases. See, e.g., Memon v. Shaikh,
401 S.W.3d 407, 419–20 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ($100,000),
judgment withdrawn, appeal dismissed, No. 14-12-00015-CV, 2014 WL 6679562 (Tex.
App.—Houston [14th Dist.] Nov. 25, 2014, no pet.) (per curiam) (mem. op.); Tranum,
283 S.W.3d at 422 ($250,000); Bunton v. Bentley, 176 S.W.3d 18, 20–21 (Tex. App.—
Tyler 2003) ($150,000), rev’d on other grounds, Bunton v. Bentley, 153 S.W.3d 50 (Tex.
2004). For cases involving mental anguish over a sexual assault or a child’s abduction,
awards of $1.5 million and $2 million, respectively, have been upheld. Sheikh v. Doe,
No. 05-19-01329-CV, 2021 WL 2947663, at *4–5 (Tex. App.—Dallas June 30, 2021,
no pet.) (mem. op.) (sexual assault); Guimaraes v. Brann, 562 S.W.3d 521, 546–47 (Tex.
App.—Houston [1st Dist.] 2018, pet. denied) (child abduction).
Bearden points us to several malicious-prosecution cases involving mentalanguish damages, chief among them Bennett, 525 S.W.3d at 647–49, in which the
plaintiff received $5,000 for his mental anguish. Calling the award “relatively modest,”
id. at 648, the supreme court was examining not the reasonableness of the amount, but
rather whether legally sufficient evidence existed to support a mental-anguish award in
the first place. As Leclair notes, nothing in Bennett tells us whether some vastly higher
amount would have survived scrutiny.
On the other hand, excessiveness was an issue in Eans v. Grocer Supply Co.,
580 S.W.2d 17 (Tex. App.—Houston [1st Dist.] 1979, no writ). There, but for a
50
JNOV, a plaintiff wrongly accused of misdemeanor theft would have won $100,000 in
damages upon a jury instruction that “it might take into account in connection with
the damage issues the elements of mental anguish, embarrassment and humiliation
and any necessary bond fees and attorney’s fees in defense of the criminal
prosecution.” Id. at 23. There was evidence that Eans had incurred $1,550 in legal and
bond fees, so the remaining $98,450 represented noneconomic harm. After holding
that the trial court erred in entering a JNOV in the defendant’s favor, the appellate
court agreed with the defendant’s conditional cross-point on excessiveness and
suggested a remitter of $30,000 off the $100,000 in exercising its “sound judicial
judgment and discretion in the ascertainment of the amount that would be reasonable
compensation for the injury sustained.” Id. The court did not explain its reasoning,
although it noted Eans’s testimony that he “felt bad” whenever he had to make a
court appearance. Id. Eans’s sister testified that she had observed changes in him since
the arrest, which the court summarized: “He is withdrawn, goes through strains of
depression and is restless. He could not sleep when he had to go to court. He did not
socialize like he used to, and he expressed present feelings of anxiety about being
branded a criminal.” Id.
Other courts have compared pecuniary to nonpecuniary mental-anguish
awards, considering a highly lopsided ratio to be some indication—though not so in
and of itself—that factually insufficient evidence supports the latter. See Lane v.
Martinez, 494 S.W.3d 339, 342, 347, 351 (Tex. App.—Eastland 2015, no pet.) (noting
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17:1 ratio of nonpecuniary to pecuniary damages, along with outsized award
compared with similar cases and the jury’s having apparently chosen an overall
damage award that it then split equally among eight damages categories, including
mental anguish, as collectively showing factual insufficiency); Bishop Abbey Homes, Ltd.
v. Hale, No. 05-14-01137-CV, 2015 WL 9167799, at *18–19 (Tex. App.—Dallas Dec.
16, 2015, pet. denied) (mem. op.) (noting ratio of roughly 6:1 between mental-anguish
award and pecuniary loss arising from foundation issues and suggesting remittitur to
amount in plaintiffs’ pretrial disclosures, which sought mental-anguish damages equal
to repair costs), supplemented, No. 05-14-01137-CV, 2016 WL 80546 (Tex. App.—
Dallas Jan. 7, 2016, no pet.) (mem. op.). And of course, nonpecuniary awards are
possible when there are no economic damages. E.g., Bentley, 94 S.W.3d at 575–76.
Here, we do not consider $485,000 to be excessive for Leclair’s mental anguish
connected with the malicious prosecution. He testified to experiencing a high degree
of anguish over being indicted and arrested, and Seay corroborated that anguish.
Although other events in Leclair’s life—the divorce, Topper’s accident, his business
breakup with Dugan, financial difficulties, and his brother’s death—contributed to his
emotional state, Leclair characterized his indictment and arrest as “significantly more
traumatic.” He testified to a degree of mental pain and stress that he had never before
experienced, and attributed that pain and stress to the felony-theft accusation and its
aftermath.
52
Leclair faced losing his liberty for up to two years—730 days, 17,520 hours,
more than one million minutes—for a crime that both Bearden and he knew he did
not commit.
On these facts, the jury’s award does not shock our judicial conscience. See
Gordon, 2019 WL 619186, at *11 (citing Pool, 715 S.W.2d at 635). The evidence is
factually sufficient to support that award, and we decline Bearden’s request that we
suggest a remittitur.
2. Reputational harm
We also conclude that the jury’s award of $200,000 in total reputational
damages is supported by factually sufficient evidence. “Reputational damages are not
amenable to exact calculation, so the factfinder must use ‘sound judgment’ in
determining the amount of such damages,” and “[s]ound judgment begins with the
facts of the case.” Innovative Block of S. Tex., Ltd. v. Valley Builders Supply, Inc.,
603 S.W.3d 409, 423 (Tex. 2020) (quoting Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys.
Landfill, Inc., 434 S.W.3d 142, 154 (Tex. 2014)). The facts of this case are pretty
egregious, particularly considering the rarefied air of a close-knit community such as
the reining world, where reputations can undoubtedly be swiftly destroyed by
someone determined to do so and where, for financial reasons, trainers must strive to
keep even difficult clients happy.
31
31In conceding that his texts with Bearden in May 2012 showed that he wasn’t
“being a good person” and was “just following along,” Johnson testified that Bearden
53
Although Leclair did not seek or prove any “hard” damages such as lost profits,
he did testify to a large drop in gross revenues because of the indictment, some
$300,000. Johnson said he became queasy about sending clients Leclair’s way—“you
needed to distance yourself” from him—and noticed that Leclair had fewer horses to
show, to the point that Leclair once had only a single nonprofessional client and no
staff at a particular show where Seay stepped in to help him. Before the indictment,
Leclair’s reputation had been good and on the rise.
As with the mental-anguish damages, our judicial conscience is not shocked on
these facts by the jury’s aggregate $200,000 award. See Gordon, 2019 WL 619186, at
*11 (citing Pool, 715 S.W.2d at 635). Indeed, it is in line with Bentley, which left intact
the jury’s $150,000 award for reputation damages. 94 S.W.3d at 605–07. Ditto for
Durant, another case involving a “small and close-knit” community, see Anderson,
550 S.W.3d at 612, where we concluded on remand that $400,000 was too high but
$150,000 would be appropriate for Anderson’s reputation damages stemming from
kickback allegations (but no indictment). Durant, 2020 WL 1295058, at *33; see also
Vodicka v. Tobolowsky, No. 05-17-00727-CV, 2019 WL 1986625, at *3 (Tex. App.—
Dallas May 6, 2019, no pet.) (mem. op.) (affirming $500,000 in damages for “injury to
“was the type of person that somebody needs as a client in this industry,” clearly
meaning “wealthy.” Even so, Bearden did not last long at Johnson’s facilities: “We did
not have the greatest Futurity, which is a show -- big show in December. And
[Bearden] was -- she was pretty upset, and she took it out on my wife and a girl that
worked for me. And I -- I had had enough, and I couldn’t tolerate the way she was
treating people, so we had a discussion.”
54
Ira Tobolowsky’s reputation and his mental anguish,” where evidence “showed that
the harm to his reputation caused him to lose clients and income”).
None of those cases involved a malicious prosecution. Bearden’s getting Leclair
indicted and then immediately defaming him on Facebook does not strike us as
unworthy of $200,000 in reputation damages as fair and reasonable compensation,
and the evidence supports it.
We overrule Bearden’s third issue in its entirety.
C. Exemplary damages
In her final, conditional issue, Bearden argues that we should revisit exemplary
damages if we suggest a remittitur.
32 Because we have declined to do so, we need not
reach this issue.

Outcome: We overrule Bearden’s issues and affirm the trial court’s judgment.

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