LLC v. Neil Heslin and Scarlett Lewis, Appellees (2026)

OPINION

Alex E. Jones and Free Speech Systems, LLC, challenge the default judgment finding them liable and the judgment after the jury trial awarding actual and punitive damages for defamation and intentional infliction of emotional distress. Appellants argue that the trial court violated the state and federal constitutions when entering death-penalty sanctions for discovery abuse on their defenses against claims by Neil Heslin and Scarlett Lewis (parents) and erred by entering a default on facially invalid claims for intentional infliction of emotional distress; submitting the intentional infliction claims to the jury because the parents failed to prove causation; failing to bifurcate the trial between actual and exemplary damages; entering a joint and several exemplary damages award; and allowing the parents to amend their petition after trial to add allegations for injury to a disabled person that allowed the exemplary damages to exceed a statutory cap. Concluding that the trial court erred by allowing the parents to amend their pleadings after the trial, we will modify the judgment by limiting their exemplary damages awards to a total of $750,000 per Appellant and affirm the judgment as modified.

BACKGROUND

The parents' son, Jesse, was shot and killed along with other students and staff at Sandy Hook Elementary School in Connecticut in December 2012. Jones discussed the circumstances of and following the shooting for several years on InfoWars, a multiplatform source of information run by Jones and Free Speech Systems, LLC (FSS) This suit is the consolidation of three suits ultimately united by a common amended petition: Heslin's suit for defamation and each parent's suit for intentional infliction of emotional distress. This consolidated suit is one of several filed involving these and other parties including proceedings in federal bankruptcy court for Jones and a former party, InfoWars, LLC. This appeal is one of several challenges to the trial court's decisions in the consolidated cases that have reached this Court in various procedural postures. See, e.g., Jones v. Heslin, No. 03-20-00008-CV, 2020 WL 4742834, at *1 (Tex. App.—Austin Aug. 14, 2020, pet. denied) (affirming denial of Appellants' motion to dismiss claims under Texas Citizens Participation Act (TCPA) and discussing related appellate causes).

Heslin filed his original defamation claim April 16, 2018 (No. D-1-GN-18-001835), and filed a separate suit for intentional infliction of emotional distress (IIED) August 8, 2019 (No. D-1-GN-19-004651). Heslin's suits were consolidated by order dated July 12, 2021. Lewis filed her original IIED claim October 31, 2018 (No. D-1-GN-18-006623); it was consolidated with Heslin's suit by order dated January 24, 2022. The parents sought relief during discovery through motions to compel and for sanctions as detailed below. The trial court refrained from entering default until September 2021, and ordered default against Appellants on liability only. InfoWars, LLC, a defendant in all these suits, filed for protection in the bankruptcy court on April 18, 2022, and was not a party at the trial.¹

Trial on the merits on causation and damages began in late July 2022, and the jury reached its verdict on compensatory damages August 4 and on exemplary damages August 5, 2022. The jury awarded Heslin compensatory damages of $100,000 for past injuries and $10,000 for future injuries plus exemplary damages of $4.2 million for his defamation claim against Appellants. On the parents' IIED claims, the jury awarded each parent compensatory damages of $1.5 million for past mental anguish and $500,000 for future mental anguish plus exemplary damages of $20.5 million each against both Appellants. On September 29, 2022, the parents sought leave to amend their petition to add a paragraph that would permit the court to award exemplary damages that exceed a statutory cap of $750,000 for each Appellant. Jones filed his bankruptcy petition on December 2, 2022.² On January 11, 2023, the trial court granted the parents leave to amend their petition.

In its January 12, 2023 judgment, the trial court awarded total damages of $26,810,000 to Heslin and $22,500,000 to Lewis plus prejudgment interest from the date the case was filed through the day before the judgment date totaling $323,150 to Heslin and $284,250 to Lewis. Consideration of this appeal was abated several times by agreement to enable settlement negotiations, particularly as they were affected by the bankruptcy proceedings.

DISCUSSION

Appellants challenge decisions concerning three phases of the trial-court proceeding—pretrial discovery, actual damages, and punitive damages. We will group discussion of the issues generally along these lines though facts, law, and decisions affecting these phases overlap.

I. The trial court did not violate the state or federal constitutions by imposing default sanctions for appellants' conduct in discovery.

By issue one, appellants contend that the trial court violated the state and federal constitutions by entering a “disciplinary default judgment” on liability after finding that appellants failed to comply with discovery requests. Appellants contend that they provided ample responses to discovery requests, that the court failed to explain how appellants' conduct prevented the parents from prosecuting their claims, that the court failed to consider lesser sanctions, and that the sanctions were unrelated to the claimed harm.

A. The federal and state constitutions do not exempt Appellants from discovery rules.

Appellants argue that the rules of discovery must give way when the First Amendment is involved. See U.S. Const. amend I; Tex. Const. art. 1, § 8. They cite the seminal New York Times Co. v. Sullivan for the proposition that “[a]uthoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth—whether administered by judges, juries, or administrative officials—and especially one that puts the burden of proving truth on the speaker.” 376 U.S. 254, 271 (1964) (holding unconstitutional law that words tending to injure public official are libelous per se and speaker could avoid liability only by proving statements were true). They contend that plaintiffs with claims that would impinge on free expression must carry their burden of proof substantively, not through procedural default, because federal rules preempt state law, citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 15 (1990) (“States could not impose liability without requiring some showing of fault”); Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974) (plaintiffs must show fault to recover and must show actual malice to recover presumed or punitive damages).

The Sullivan case did not involve discovery abuse. It concerned Alabama law that shifted the burden of proof in defamation from plaintiff to defendants, 376 U.S. at 267, not a procedural default mechanism meant to balance the effect of discovery misconduct in all causes of action irrespective of the role of free expression. See Tex. R. Civ. P. 215. The sanction imposed in this cause did not shift the burden of proof and require Appellants to prove non-liability. The trial court concluded that Appellants' discovery misconduct deprived the parents of access to discoverable materials that hindered the parents' ability to prove their case; the default on liability prevented Appellants from benefitting from that misconduct but left unchanged the parents' burden to prove that Appellants' previous actions caused damage to the parents.

Appellants' reasoning would deprive courts of the ultimate option to prod parties to participate meaningfully in discovery. Without the risk of default, the recalcitrant party's incentive would be to withhold all or most discovery and thereby thwart their opponents' ability to prove or defend their case. We do not read Sullivan so broadly. The discovery sanctions here were imposed based on Appellants' litigation conduct not their exercise of any First Amendment rights. Appellants' arguments that their speech is constitutionally protected are unavailing because the sanctions are neutral regarding content, cause of action, and burden of proof in the litigation. The discovery sanctions do not chill First Amendment activity but encourage compliance with discovery rules applicable regardless of the subject matter of the litigation.

Unlike the Alabama practice struck down in Sullivan, the trial court here did not shift the burden of proof onto all defamation or IIED defendants to prove the truth of their statements to escape liability. Rather, as discussed in more detail below, the trial court found that Appellants' discovery abuses justified a presumption that their defenses to the parents' liability allegations lacked merit and that lesser sanctions had not and would not deter such discovery abuse. See TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917–18 (Tex.1991) (discussing the due-process limitations on death-penalty sanctions). The trial court limited the sanction to liability and required the parents to prove and allowed Appellants to defend against claims that Appellants caused the parents' damages.

We further conclude that the standards that protect Appellants' rights to due process under the federal and state constitutions by limiting the application of death-penalty sanctions, see generally id., also guard Appellants' rights to free expression from tangential effects.

B. Due-process concerns limit courts' discretion to impose sanctions.

The right to due process limits extreme sanctions. Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 184 (Tex. 2012). Sanctions must be “just.” Tex. R. Civ. P. 215.2(b); TransAmerican., 811 S.W.2d at 917; see also Retamco, 372 S.W.3d at 184. There must be a direct relationship between the offensive conduct and the sanction imposed, and the sanction imposed must not be excessive. Retamco, 372 S.W.3d at 184; TransAmerican, 811 S.W.2d at 917. A court must consider relatively less stringent sanctions first to determine whether lesser sanctions will fully promote compliance, deterrence, and discourage further abuse. TransAmerican, 811 S.W.2d at 917; see also Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992). “[T]here are constitutional limitations upon the power of courts, even in aid of their own valid processes, to dismiss an action without affording a party the opportunity for a hearing on the merits of his cause.” TransAmerican, 811 S.W.2d at 918 (quoting Societe Internationale v. Rogers, 357 U.S. 197, 209–10 (1958)). Death-penalty sanctions “cannot be used to adjudicate the merits of a party's claims or defenses unless a party's hindrance of the discovery process justifies a presumption that its claims or defenses lack merit.” Id.; see also Retamco, 372 S.W.3d at 184. Sanctions that preclude presentation of the merits “should not be assessed absent a party's flagrant bad faith or counsel's callous disregard for the responsibilities of discovery under the rules.” TransAmerican, 811 S.W. 2d at 918. The trial court may consider everything that has occurred during the history of the litigation and is not limited to considering only the last violation of the discovery rules. Hizar v. Heflin, 672 S.W.3d 774, 788 (Tex. App.—Dallas 2023, pet. denied).

The abuse-of-discretion standard is not an evidentiary sufficiency review. Blackmon, 841 S.W.2d at 852. An appellate court may reverse an award of death-penalty sanctions for abuse of discretion only if it is clear that the trial court's decision was arbitrary and unreasonable or without reference to any guiding rules and principles. Cire v. Cummings, 134 S.W.3d 835, 844 (Tex. 2004). If some evidence supports a trial court's decision to impose a sanction, we will not hold that it abused its discretion. Nath v. Texas Children's Hosp., 446 S.W.3d 355, 361 (Tex. 2014).

C. The record supports the trial court's sanction.

1. The scope of review does not require formally admitted evidence and includes the clerk's record.

Appellants contend that the record does not support the default ordered on liability because no evidence was admitted at the sanctions hearing, relying on Brann v. Guimaraes, No. 14-20-00023-CV, 2021 WL 4099651, at *3 (Tex. App.—Houston [14th Dist.] 2021, pet. denied) (mem. op.). The Brann court reversed an award of attorney's fees to a defendant who prevailed on summary judgment on grounds that the plaintiff's suit was frivolous, unreasonable, or without foundation. Id. at *1, *3; see also Tex. Fam. Code § 42.009 (authorizing award of attorney's fees to party prevailing against frivolous claim). The court of appeals held that the defendant's mere citation to documents in the clerk's record, none of which were admitted into evidence during the bench trial on fees, did not provide evidentiary support for the finding that the plaintiff's claim was frivolous. Brann, 2021 WL 4099651, at *3. The Brann court, however, was not reviewing discovery sanctions under Texas Rule of Civil Procedure 215.

A discovery-sanctions proceeding is distinct from the post-summary judgment bench trial on the frivolousness of the plaintiff's claims under the Family Code. Though Rule 215 calls for a “hearing” when sanctions for discovery abuse are at issue, no oral hearing is required. Cire, 134 S.W.3d at 839 (holding “nothing in Texas Rule of Civil Procedure 215.3] indicates that this must be an ‘oral hearing.’ ”). A trial court may consider factors other than evidence in determining whether to impose a discovery sanction. Van Es v. Frazier, 230 S.W.3d 770, 778 (Tex. App.—Waco 2007, pet. denied). When reviewing the trial court's decision, we look at the entire record, including the evidence, arguments of counsel, written discovery on file, and the circumstances surrounding the party's discovery abuse. Hizar, 672 S.W.3d at 788. To assess the propriety of the “death penalty” sanctions, we “must be able to evaluate the trial court's ruling in light of the history of the litigation.” Id.

Courts have found no abuse of discretion for imposition of death-penalty sanctions for a variety of discovery abuses. See, e.g., Cire, 134 S.W.3d at 842–43 (affirming default when abusive party failed to produce important recordings, failed to pay monetary sanctions for that failure, and destroyed recordings); Paradigm Oil, Inc. v. Retamco Operating, Inc., 161 S.W.3d 531, 539 (Tex. App.—San Antonio 2004, pet. denied) (affirming striking of pleadings when appellant failed to respond to discovery, responded partially after ordered to respond fully, failed to respond to additional discovery, did not appear for deposition, and after hearing on motion for sanctions produced over 2,500 documents responsive to only one request); Salomon v. Lesay, 369 S.W.3d 540, 558 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (affirming striking of pleadings when appellant had not appeared for deposition thirty-two months after being first ordered to appear for deposition, fourteen months after being fined $1,000 for failure to appear, and after his counsel was warned pleadings could be struck for his non-appearance).

Courts have found abuses of discretion for various failures to apply the standard. See, e.g., GTE Communications Sys. Corp. v. Tanner, 856 S.W.2d 725, 729–30 (Tex. 1993) (mandamusing court that struck pleadings and awarded $150,000 in attorney's fees for failure to produce memo; Supreme Court held that plaintiff did not prove defendant possessed “missing” memo and did not explain why lesser sanction would not have worked, nor did record show why lesser sanctions would not have worked); TransAmerican, 811 S.W.2d at 915, 918–19 (mandamusing court that struck pleadings for failure of witness to appear for rescheduled deposition; unclear whether lawyers or litigant was to blame, no indication lesser sanctions were considered, and record suggested lesser sanction might have worked); Electronic Data Sys. Corp. v. Tyson, 862 S.W.2d 728, 739 (Tex. App.—Dallas 1993, no writ) (reversing death-penalty sanction because court did not explain why lesser sanction would have been ineffective and did not hear evidence of whether party had requisite bad faith or attorney showed callous disregard for responsibility under rules); Welex, a Div. of Halliburton Co. v. Broom, 823 S.W.2d 704, 708 (Tex. App.—San Antonio 1992, writ denied) (reversing trial court's default sanctions issued when party failed to produce witnesses for depositions due to misplaced notice and party sought protection from discovery requests sent close to trial even though parties agreed discovery could continue until day of trial; appellate court reversed because hearing showed trial court failed to consider less stringent sanctions and failed to consider sanctions against attorney only).

Appellants also complain of the court's references to and any reliance on reported discovery abuses in other cases, including those in other jurisdictions. While misconduct in another case or jurisdiction is not alone grounds for sanctions in these cases, it can be relevant. Though evidence of an act is not admissible to prove a person's character to show that on a particular occasion the person acted in accordance with that character, evidence of an act may be admissible to prove motive, intent, preparation, plan, knowledge, absence of mistake, or lack of accident. See Tex. R. Evid. 404(b). Further, “[e]vidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice.” Id. R. 406. Thus, a party's conduct in similar cases with similar evidence arising from the same event may bear on issues under the TransAmerican test such as the party's good-faith attempt to comply and on whether lesser sanctions might be effective. See 811 S.W.2d at 917–18 (setting out test for sanctions).

2. The record leading to the order of default on liability.

The discovery sanctions hearing involved the consolidated Heslin cases, Lewis's case, and a case brought by other parents. Because the court issued separate orders in the consolidated Heslin cases and Lewis's case, we will discuss their histories separately. This recitation is condensed from our review of the extensive record and will focus on conduct in these cases.

a. Heslin motions and orders

In his defamation case, Heslin obtained an August 31, 2018 order for expedited discovery to help him respond to Appellants' TCPA ³ dismissal motion. The court allowed written discovery and depositions of Jones, Owen Shroyer (a colleague at InfoWars and then-codefendant), InfoWars, and FSS. Responses to the written discovery were due within 30 days of service and the depositions were ordered completed no later than October 22, 2018. On October 1, 2018, Heslin moved for contempt, complaining that Appellants refused to produce documents or answer questions and had not cooperated with scheduling depositions. Appellants then appealed what they deemed a denial of their TCPA dismissal motion by operation of law, staying the trial court proceedings; this Court held that the trial court properly extended the time for a hearing and did not deny the TCPA dismissal motion directly or by operation of law, leaving this Court with no order to review and no jurisdiction. Jones v. Heslin, 587 S.W.3d 134, 137 (Tex. App.—Austin 2019, no pet.).

Upon resumption of trial-court proceedings, the trial court on October 3, 2019, heard Heslin's motion for contempt under Rule 215 and Appellants' TCPA dismissal motion. By order dated October 18, 2019, the court held Appellants in contempt of its August 31, 2018 discovery order. The court found that Appellants' failures to obey the 2018 order were not substantially justified, denied the TCPA dismissal motion, and ordered Appellants to pay $25,875 of Heslin's costs and expenses incurred because of that failure.

Appellants filed an interlocutory appeal of the express denial of their TCPA dismissal motion in the defamation case. This Court affirmed the denial and awarded sanctions to Heslin for a frivolous appeal in part because the discovery sanctions ordered that Heslin's allegations were established favoring Heslin for purposes of the TCPA motion. Jones v. Heslin, No. 03-19-00811-CV, 2020 WL 1452025, at *6 (Tex. App.—Austin Mar. 25, 2020, pet. denied) (mem. op). The Texas Supreme Court denied the petition for review and returned the case to the trial court by mandate issued June 4, 2021.

Heslin filed a second motion for contempt in the defamation case on July 6, 2021, complaining of Appellants' continued noncompliance following remand. Heslin's attorney sent a July 2, 2021 email summarizing Appellants' non-compliance with the 2018 discovery orders since the 2021 remand. Appellants' counsel responded by requesting a copy of all pending discovery requests, asserting he was playing catch-up. The court consolidated Heslin's defamation and IIED cases on July 12, 2021.

Before consolidation, the court had experienced similar discovery disputes in Heslin's IIED case. On October 18, 2019, the trial court granted Heslin's motion for expedited discovery in response to Appellants' TCPA dismissal motion. The court ordered Appellants to respond to specified written discovery and to make Jones, FSS, and another individual available for deposition by November 30, 2019. The court also required FSS to produce a corporate representative to testify about specified topics.

Heslin's subsequent December 9, 2019 motion for sanctions and for default judgment on liability had attachments including the record of depositions of Jones and FSS's corporate representative Rob Dew. Appellants had responded to interrogatories about the source of information for specific Jones contentions by referring to types of information he might have used without specifying a particular source. In deposition, however, Jones stated that he should be able to find the sources of information. Dew stated that he was prepared to discuss two of the topics specified in the court's order: “Sourcing and research for the videos described in Plaintiff's petition” and “Internal editorial discussions regarding Free Speech System, LLC's coverage of the Sandy Hook Elementary School shooting.” When asked what he had done to prepare to speak for FSS regarding sourcing and research, Dew said “Not much, other than speak with my attorney.” The only document he looked at was the list of topics from the court order. The only FSS employee he talked to was Alex Jones. Dew thereafter responded repeatedly that he was not prepared to discuss the sourcing or research underlying particular videos. When asked what he had done to prepare to speak regarding internal editorial discussions, he again said he had spoken with his attorney but had not reviewed emails, text messages, or memoranda and had not spoken “with any of the employees that are still at InfoWars that may have been related to Sandy Hook in any way.”

In discussing sanctions at the December 18, 2019 hearing, Judge Scott Jenkins pointed to Jones's inability to answer questions about sources but saying he could find them and Dew's “completely useless” deposition. Appellants' counsel argued against a default judgment by vowing future compliance with discovery orders:

[APPELLANTS' COUNSEL]: I am certainly going to comply with that 100 percent, stay or no stay, moving forward, absolutely.

THE COURT: So your point is let it come back to the trial judge who's going to try the case and see just how quickly you do that—

[APPELLANTS' COUNSEL]: Exactly.

THE COURT: —and how compliant you are with the order before we make potentially outcome determinative decisions—

[APPELLANTS' COUNSEL]: Exactly right.

In the December 20, 2019 order awarding sanctions, the court held that Appellants failure to comply with its October 18 discovery order was not substantially justified. The court specifically ordered that the failure to produce a prepared corporate representative was contempt of court and found that Appellants intentionally disregarded the October 18 order. The court awarded $65,825 in attorney's fees paid as costs of court. The court took the motion for default judgment under advisement and said the motion could be reurged after an anticipated appeal of the denial of Appellants' TCPA dismissal motion. This Court affirmed the denial of the TCPA dismissal motion but declined to impose sanctions for a frivolous appeal. See Jones v. Heslin, No. 03-20-00008-CV, 2020 WL 4742834, at *3 (Tex. App.—Austin Aug. 14, 2020, pet. denied) (mem. op.).

On June 28, 2021, Heslin filed a supplemental brief in support of his motion for default judgment; this time, Heslin asked simply for default without limitation to liability. He reiterated his complaint that Appellants had wiped the memory of some computers after Heslin filed suit as shown by deposition testimony of FSS's IT director, Michael Zimmerman, in this cause. Heslin complained that employee searches of their own computers had produced no communications responsive to discovery requests—a fact Zimmerman testified surprised him. He complained about Appellants' response to interrogatories about modes of communication among employees that listed email, telephone, and verbal communication, while Zimmerman testified at deposition that over the years employees had used Slack, Rocket.Chat, Wire, and Yahoo! Messenger. Heslin complained about Appellants' failure to preserve their social media accounts despite their knowledge of attempts to get Appellants removed from those platforms. Appellants conceded that they did not preserve videos posted to social media accounts and YouTube—Zimmerman said he did not know that was possible—and Heslin complained that the deplatforming without preservation destroyed videos that would have supported his claims.

On August 28, 2021, three days before the default judgment hearing, Appellants produced documents ⁴ including 2019-dated court-reporter transcriptions of InfoWars videos. At the August 31, 2021 hearing, Heslin's attorney described this production as “alarming” because the transcriptions were made months before Appellants told Heslin's attorney the transcriptions did not exist. Heslin's attorney also found “disturbing” that some transcriptions concerned videos that he said Appellants had told him they did not have copies of. Heslin's attorney also complained that 2,100 pages of the production were analytics and spread sheets unresponsive to his requests. He wrote that another document showed Appellants' chief editor discussing another messaging application that had not been identified in previous discovery responses. Another document was an email from Roger Stone to Jones which was inconsistent with prior deposition testimony that Jones did not use email.

b. Lewis

On January 25, 2019, the court issued an order in Lewis's case allowing expedited discovery to respond to Jones's TCPA dismissal motion. The court ordered Appellants to respond to specified written discovery within 30 days of service and permitted depositions of Jones, InfoWars, FSS, and another individual within 60 days of service of the written discovery. At a March 7, 2019 hearing, the trial court declined to extend the time for Appellants to respond to discovery and stating that they would “run the consequences of Rule 215 and sanctions.” On March 8, 2019, the trial court granted Lewis's motion to compel documents withheld under the reporter's privilege, allowing confidential source names to be redacted.

In late March 2019, Lewis moved for sanctions for discovery abuse. She contended that Appellants failed to provide ordered documents, fully respond to other discovery requests, or present a prepared corporate representative for deposition. After reviewing what she described as a “Non-Responsive Document Dump” of 79,000 pages of documents delivered after depositions of Appellants' representatives were taken, she described the documents included “nearly 10,000 pages of emails almost exclusively from the same four mentally disturbed viewers, who repeatedly sent emails which were hundreds of pages long” as well as emails referencing “Newtown” communities in other states and countries (though she had not requested a search for “Newtown”), an ad for a can opener, and a coupon for flower delivery, an email suggesting songs to use during the show, and a tip from a viewer worried after seeing a train carrying military supplies. The court did not rule on the motion for sanctions because, at the April 3, 2019 hearing on the motion, Appellants limited their TCPA dismissal motion to a question of law for which the discovery—complete or not—was unnecessary; under a Rule 11 agreement, Appellants' attorney paid $8,100 in attorney's fees incurred in relation to the motion and hearing for sanctions.

Lewis filed a motion for contempt on July 6, 2021, asserting that Appellants had not filed any discovery responses following the remand of the case to the trial court from the Texas Supreme Court on June 4, 2021. Her counsel discussed pending discovery in this cause in his July 2, 2021 email to Appellants' counsel, to which Appellants' counsel issued his blanket request for all pending discovery. Lewis listed document production, written discovery, and a corporate deposition as lacking.

c. Appellants' responses

Appellants contested the discovery motions throughout the lawsuits. In their summative August 30, 2021 responses to the motions, they argued that they had participated in discovery and that the motion failed to show what documents they had not produced or how the absence of those documents prejudiced Heslin. Appellants also contended that the contested discovery concerned only the TCPA dismissal motions and that non-compliance with that did not warrant default on liability for the claims on the merits. The Appellants noted that they had recently produced 7,000 more pages of documents. They asserted that they had not willingly or intentionally violated any court order and that their current counsel was working diligently to ensure compliance despite having a two-week jury trial starting mid-July in another court. Appellants argued that the litigation was in its initial discovery stages and that the parents had not shown that death-penalty sanctions were appropriate.

d. The trial court did not abuse its discretion.

The trial court's order addressed all issues required under TransAmerican, 811 S.W.2d at 917–18. The court began each order with a brief review of the history of both cases, including the precursor discovery orders. The court held that Appellants' “flagrant bad faith and callous disregard for the responsibilities of discovery under the rules,” “pervasive and persistent obstruction of the discovery process,” “deliberate, contumacious, and unwarranted disregard” for the trial court's authority, and “egregious discovery abuse justifie[d] a presumption that [their] defenses lack merit.” The court found that their conduct was “greatly aggravated by the consistent pattern of discovery abuse throughout the other Sandy Hook cases pending before this court” as well as in a Sandy Hook-related lawsuit against Appellants in Connecticut and in another suit in Travis County against Appellants about a different school shooting. The court also concluded that Appellants' conduct justified a presumption that their defenses lacked merit.

The court found that lesser sanctions—including an escalating series of judicial admonishments, monetary penalties, and non-dispositive sanctions—had been ineffective, and concluded that more such remedies would benefit Appellants, increase costs to the parents, and would not correct Appellants' “persistent discovery abuses.” The court considered Appellants' “general bad faith approach to litigation” as well as Jones's public threats and belief that these were show trials.

The court also found that the misconduct was properly attributable to the client and not the attorney because the conduct had persisted while Appellants were represented by different attorneys through the course of the suit.

We conclude that the trial court did not abuse its discretion. The record shows Appellants' lack of complete responses to discovery, lack of supplementation, production of non-responsive documents, lack of preparation of corporate representatives, and inconsistencies between written discovery and deposition testimony. The challenged discovery responses, production, and depositions concerned the content of Appellants' broadcasts and the decisions behind them—subjects that bear on Appellants' liability, not just the TCPA motion. See generally In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015) (elements of defamation); Warner Bros. Entm't, Inc. v. Jones, 538 S.W.3d 781, 814 (Tex. App.—Austin 2017) (quoting Hersh v. Tatum, 526 S.W.3d 462, 468 (Tex. 2017)), aff'd, 611 S.W.3d 1 (Tex. 2020) (elements of intentional infliction of emotional distress). The court imposed lesser sanctions along the way and postponed ruling on the default for nearly three years. In 2021, after the cases had returned from the appellate system, the court acted within its discretion to conclude that lesser sanctions would not suffice again. The court nevertheless limited its default to liability; the parents still had to prove and Appellants could still defend on the elements of causation and damages. Regardless of the court's mention of Appellants' actions in other cases, the records in the three cases individually support the court's exercise of discretion. The longitudinal record of incomplete participation with changing representation supports the court's exercise of discretion in concluding that the misconduct was attributable to Appellants, not their attorneys. We conclude that the court did not abuse its discretion by determining that the defaults on liability were just. We overrule issue one.

II. Appellants did not show that the trial court erred reversibly at the actual damages phase.

Appellants contend that the trial court committed several errors at the actual-damages phase. They assert that the trial court erred by entering default favoring the parents' IIED claims because those claims are facially invalid, by submitting the IIED claims to the jury because the parents failed to prove IIED causation and instead submitted evidence only of defamation, and by failing to strictly bifurcate the trial on damages.

A. Submission of the IIED claim

To state a prima facie case of intentional infliction of emotional distress, a plaintiff must provide clear and specific evidence that “(1) the defendant acted intentionally or recklessly; (2) its conduct was extreme and outrageous; (3) its actions caused the plaintiff emotional distress; and (4) the emotional distress was severe.” Warner Bros., 538 S.W.3d at 814 (quoting Hersh, 526 S.W.3d at 468). Intentional infliction of emotional distress is a “gap-filler” tort not intended to supplant or duplicate existing statutory or common-law remedies. Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005). When a plaintiff bases an IIED claim on the same facts on which the plaintiff bases a defamation claim, the plaintiff does not establish a prima facie IIED claim. Warner Bros., 538 S.W.3d at 814.

A defamation claim requires proof of “(1) the publication of a false statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with the requisite degree of fault, and (4) damages, in some cases.” Lilith Fund for Reprod. Equity v. Dickson, 662 S.W.3d 355, 363 (Tex. 2023). A private individual need only prove negligence, whereas a public figure or official must prove actual malice. In re Lipsky, 460 S.W.3d at 593. A defamatory statement is a written one that “tends to blacken the memory of the dead or that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt, or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation ․” Tex. Civ. Prac. & Rem. Code § 73.001.

1. Facial validity of IIED claim

Appellants contend by issue two that the parents' IIED claims are facially invalid based on the pleadings because the parents' claims sound in defamation and that the trial court erred by entering a default judgment that appellants were liable on those claims. Appellants argue that the IIED claim coincides with the defamation claim and does not fill a gap in available tort theories, making the trial court's default judgment erroneous. Appellants also assert that the parents failed to allege any conduct except false statements or “any allegations to support their conclusory statements that Defendants coordinated and encouraged ‘a fringe community of dangerous fanatics who have stalked and endangered’ ” the parents. Appellants argue that the parents' reliance on statements that Appellants made knowing they were false or with reckless disregard for their truth shows that the claims are covered by defamation and need no gap-filling IIED claim.

The parents respond that Appellants conceded the gap-filler issue, that Appellants waived any complaint about their pleadings by failing to specially except, and that the pleadings included defamation-style allegations because Heslin lodged a defamation claim in addition to the IIED claims. They also contend that their pleadings provide adequate notice of an IIED claim.

When considering a challenge under the TCPA in Heslin's case before its consolidation with Lewis's case, this Court determined that the gap-filling issue is part of the prima facie case that the default judgment established. See Jones v. Heslin, No. 03-20-00008-CV, 2020 WL 4742834, at *4 (Tex. App.—Austin Aug. 14, 2020, pet. denied) (mem. op.). Further, in Lewis's pre-consolidation case at a hearing on Appellants' motion to dismiss, Appellants answered “yes” to the trial court's query whether he “agree[d] it really can't be a defamation case because there's been no claim or statement made about the plaintiff herself?” Counsel then agreed with the court's assessment that “that sort of eliminates our gap filler problem.” Though Appellants argued unsuccessfully that the IIED claim failed, they conceded at trial that the only claim available to Lewis was an IIED claim.

Texas requires only that pleadings provide fair notice of the claim and the relief sought such that the opposing party can prepare a defense. See Tex. R. Civ. P. 45, 47; In re Lipsky, 460 S.W.3d at 590. Even the omission of an element is not fatal if the cause of action “may be reasonably inferred from what is specifically stated.” In re Lipsky, 460 S.W.3d at 590; Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993). A plaintiff is not required to “set out in his pleadings the evidence upon which he relies to establish his asserted cause of action.” In re Lipsky, 460 S.W.3d at 590. The parents note that Appellants did not specially except to the parents' pleadings and thus that courts are required to construe pleadings liberally in the parents' favor. See Tex. R. Civ. P. 90; Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000).

The parents' IIED petitions included allegations that diverged from defamation because they included complaints about Appellants' statements that did not refer to the parents or impugn their child's reputation but nevertheless allegedly caused the parents anguish. The parents' Fourth Amended Petition filed after consolidation of all three cases included allegations of defamation in part because Heslin maintained a defamation claim that was submitted to the jury; Heslin asserted that InfoWars accused him of lying about whether he held his son's body and saw a bullet hole in his head. The petition separately alleged:

13 This case also arises out of the intentional infliction of emotional distress committed against Plaintiffs for the past five years through InfoWars' recklessly false statements concerning the circumstances of the death of their child, as well as InfoWars' coordination and encouragement of a fringe community of dangerous fanatics who have stalked and endangered the Sandy Hook parents. Plaintiffs and their family have been specifically targeted in this campaign of harassment.

14. This conspiracy theory, which has been pushed by InfoWars and Mr. Jones since the day of the shooting, alleges that the Sandy Hook massacre did not happen, or that it was staged by the government and concealed using actors, and that the parents of the Victims are participants in a horrifying cover-up.

15. In addition to cruel mockery of the families, InfoWars has spent years advancing a vast collection of grotesque and outrageous falsehoods about the circumstances of the shooting and the subsequent law enforcement investigation and media coverage.

16. All of these baseless and vile allegations, which have been pushed by InfoWars and Mr. Jones on a continuous basis since the shooting, advance the idea that the Sandy Hook massacre did not happen, or that it was staged by the government and concealed using carefully placed actors, or that the families of the victims are also participants in a horrifying cover-up. InfoWars knew its assertions were false or made these statements with reckless and outrageous disregard for their truth.

The parents' petition also alleged that Jones asserted on video that the government staged various national tragedies including the Sandy Hook school shooting, that people were acting when talking about the shooting, that the Sandy Hook massacre was an illusion, that InfoWars published an article titled “FBI Says No One Killed at Sandy Hook,” that the children were going in circles in and out of the building as a photo opportunity, and that one of the children was allegedly killed again in Pakistan. The parents alleged that Jones said on a broadcast that “Sandy Hook is a synthetic, completely fake with actors, in my view, manufactured. I couldn't believe it at first. I knew they had actors there, clearly, but I thought they killed some real kids. And it just shows how bold they are that they clearly used actors.” They quoted him in later broadcasts and videos saying Sandy Hook is “as phony as a three-dollar bill,” “a carnival,” and “a big PR stunt.” They said he showed maps and addresses used by the parent who was the leader of a Sandy Hook non-profit.

The parents alleged further that Jones hosted Wolfgang Halbig on the show. Halbig said that the parents were actors and that the event was staged. Jones asked for donations to help Halbig's investigations into Sandy Hook and had Halbig as a guest on the show repeatedly. They alleged that InfoWars sent a reporter to Newtown with Halbig to confront residents, where the reporter “aggressively berated several individuals with profanity, false claims, and outrageous threats to publicize their crimes. Their activities created a climate of fear in the community.”

The parents also alleged that Jones and InfoWars knew of the “unhinged community of ‘Sandy Hook Investigators’ they had fostered” and “that a large collection of Sandy Hook deniers were coordinating their harassment against Plaintiffs and other victims,” and that Jones and InfoWars “have frequently communicated with the hoax community and have interviewed or promoted members of this dangerous community.” The parents alleged that “Plaintiffs and their family have suffered harassment and threats from this community.”

The parents alleged that Jones made a November 2016 “Final Statement on Sandy Hook.” The gist of his statement was that Sandy Hook parents were participating in a sinister manipulation plan to fool the public or that a shadowy cabal of elites pre-planned the murder of their children and controlled the coverage of the event through the media manipulation. They quote him as saying:

So, if children were lost at Sandy Hook, my heart goes out to each and every one of those parents. And the people who say they're parents that I see on the news. The only problem is, I've watched a lot of soap operas. And I've seen actors before. And I know when I'm watching a movie and when I'm watching something real.

The parents asserted that the November 2016 statement was not Appellants' final statement on Sandy Hook and that Appellants reiterated their allegations that the shooting was faked.

The parents alleged that a later broadcast featured InfoWars reporter Shroyer stating that Heslin's claim to have held his dead child as being inconsistent with the coroner's timeline. They alleged Shroyer said, “You would remember if you held your dead kid in your hands with a bullet hole․ Will there be a clarification from Heslin or Megyn Kelly? I wouldn't hold your breath. [Laugh]. So now they're fueling the conspiracy theory claims. Unbelievable.” The parents alleged that subsequently Jones “continued to gaslight” them by insisting that he admitted for years that the shooting was real and that he had apologized while the video lacked an apology. The parents alleged that Jones asserted that he stopped bringing up the parents when instead he continued to repeat false claims about the incident.

The parents asserted that Appellants knew or should have known that their videos would cause them severe emotional distress and cause their family to be the subject of harassment, ridicule, and threats to their safety. The parents alleged that Appellants

• consistently published false assertions about the circumstances of the parents' child's death long after Appellants should have known the allegations were false and causing emotional distress and danger;

• made those statements knowing the statements were false or in reckless disregard for the truth;

• encouraged, aided, and financially supported third parties in furthering the harassment;

• conducted intentional and reckless harassment;

• addressed the parents directly in their videos; and

• knew or should have known that their conduct could cause the parents to suffer harassment, violence, and hostile and harassing contact from Appellants' audience members.

The parents asserted that Appellants' conduct was outrageous, intolerable, and beyond all possible bounds of decency, and that Appellants knew and intended for the parents to suffer emotional distress. The parents allege that they have suffered substantial damages, including a severe degree of mental stress and anguish that disrupted their daily routine and caused a high degree of psychological pain.

We conclude that the pleadings satisfied notice-pleading requirements for the IIED claims. While there are allegations relevant to defamation in the petition, that is consistent with Heslin making a defamation claim. Any conclusory allegations regarding Appellants' coordination and encouragement of others are within the nature of notice pleadings. See In re Lipsky, 460 S.W.3d at 590 (plaintiffs need not set out in their pleadings evidence on which they rely to establish cause of action). The allegations used all the terms required to make an IIED claim. See Warner Bros., 538 S.W.3d at 814. The parents alleged years of false statements that were not about the parents but were about the circumstances of their child's death; such allegations would not sound in defamation, which requires that the challenged statement be “defamatory concerning the plaintiff.” See Lilith Fund, 662 S.W.3d at 363. The allegations exceeded the scope of defamation and provided notice of an IIED claim.

We overrule issue two.

2. Evidence of IIED claim

In issue four, Appellants focus on the evidence presented and contend that the parents failed to prove causation of damages apart from a defamation theory. They note that a party who obtains a default judgment on liability still must present evidence of a causal nexus between the event sued upon and the party's injury. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 732 (Tex. 1984) (discussing burdens in personal-injury default-judgment case). Appellants contend that “most of” the parents' evidence focused on the emotional injuries Appellants caused but “failed to present any evidence that the complained of conduct and subsequent damages could not have been brought as defamation claims.” Appellants argue that testimony that the parents' distress that Appellants' statements caused others to disbelieve them sounded in defamation, not IIED. Appellants contend that the parents' testimony about threats and harassment by people not employed by Appellants and directed at persons other than the parents could not properly form the basis of a damage award for IIED against Appellants.

To the extent Appellants complain that Heslin testified about defamation injury, that complaint fails because Heslin sued for defamation and bore the burden to prove his defamation claim. His testimony about defamation does not diminish or preclude his IIED claim.

Appellants argue that “Heslin never identified a single instance that Alex Jones or any InfoWars employee did anything beyond make false statements on broadcasts.” But that does not insulate Appellants from IIED claims. False statements can do more than defame. The parents alleged Appellants published numerous false assertions about the circumstances of their child's death. They asserted that Appellants made a relentless stream of reckless false articles and harassing social-media content and encouraged, aided, and financially supported third parties to further the harassment. They pleaded that Appellants knew or should have known that their videos would cause harassment, violence, and severe emotional distress. The default established these allegations as fact for this suit. See Retamco, 372 S.W.3d at 186 (striking defendant's answer establishes answer to liability issues). These allegations show a cause distinct from defamation.

The court is required to submit the questions, instruction, and definitions that are raised by the written pleadings and evidence. Tex. R. Civ. P. 278. Consistent with their pleadings and contrary to Appellants' argument, the parents produced evidence of damages that were not derived from defamation. They testified not just to their suffering caused by their child's murder but also to the negative emotional effects on their lives from Appellants' public accusations and innuendo plus the actions by persons encouraged, aided, and financially supported by Appellants. The parents testified that the repetition of false narratives about the circumstances of their child's death caused them to relive the actual circumstances. The parents testified that the publications and harassment Appellants' conduct incited caused the parents to fear for their and their family's safety. The parents' suffering and fear for safety are not within the scope of defamation and supported the submission of the cause to the jury as well as the jury's verdict.

We overrule issue four.

B. Bifurcation

Appellants complain by issue three that the trial court erred by failing to “strictly bifurcate” the trial between consideration of actual and exemplary damages. On motion by a defendant, the court must first try liability for compensatory and exemplary damages and the amount of compensatory damages; if liability for exemplary damages is found during the first phase, in phase two the court shall determine the amount of exemplary damages to award, if any. Tex. Civ. Prac. & Rem. Code § 41.009(c), (d). Evidence relevant only to the amount of exemplary damages is not admissible in phase one of a bifurcated trial. Id. § 41.011(a). Evidence relevant to the amount of exemplary damages includes: (1) the nature of the wrong; (2) the character of the conduct involved; (3) the degree of culpability of the wrongdoer; (4) the situation and sensibilities of the parties concerned; (5) the extent to which such conduct offends a public sense of justice and propriety; and (6) the net worth of the defendant. Id. § 41.011(b). Of the six statutory factors, net worth is “generally relevant only to the amount of exemplary damages.” See Transportation Ins. v. Moriel, 879 S.W.2d 10, 30 (Tex. 1994).

When ruling on the motion to bifurcate, the trial court expressly stated that it was granting the motion to “bifurcate net worth” but otherwise denying the motion. The court heard evidence and received jury findings awarding compensatory damages before hearing evidence and receiving jury findings awarding exemplary damages, but Appellants complain they were harmed during the compensatory-damages phase of trial by the admission of evidence relevant only to exemplary damages. They complain that the jury was “bombarded” with evidence on the factors that relate to exemplary damages under section 41.011 other than net worth. See Tex. Civ. Prac. & Rem. Code § 41.011(a). They argue that the amount of compensatory damages awarded “despite Plaintiffs['] failure to produce any medical expenses, lost wages, or any other evidence documenting their alleged damages” shows that they were harmed by the failure to bifurcate.

The trial court submitted to the jury the issues of compensatory damages and, only after receiving the jury's verdict on those issues, proceeded to a trial after which it submitted the issues of exemplary damages. It did not erroneously deny the motion to bifurcate the issues of exemplary damages. Issue three is substantively a challenge to the erroneous admission of evidence relevant only to exemplary damages.

We review a trial court's evidentiary rulings for abuse of discretion. Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion if it acts without reference to any guiding rules or principles or if its actions are arbitrary and unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). We must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling. Malone, 972 S.W.2d at 43. For the admission of evidence to constitute reversible error, the complaining party must show that (1) the trial court committed an error, and (2) the error was reasonably calculated to cause, and probably did cause, rendition of an improper judgment. State v. Central. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009); see also Tex. R. App. P. 44.1(a)(1). In making this determination, a court must review the entire record. Central Expressway Sign, 302 S.W.3d at 870. A successful challenge to a trial court's evidentiary rulings requires the complaining party to demonstrate that the judgment turns on the particular evidence admitted. Nissan Motor Co., Ltd. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). Erroneous admission of evidence is harmless if it is merely cumulative. See id. Whether the erroneous admission of evidence is harmful is more a matter of judgment than precise measurement. Id.

Appellants complain of the admission of testimony from various witnesses that they complained about at trial through motions for mistrial and objections to testimony:

• Daniel Jewiss, the lead investigator of the Sandy Hook shootings, testified about punitive-damages issues; this objection was lodged after Jewiss's testimony concluded.

• Daria Karpova, an InfoWars producer, who had testified as Free Speech Systems's corporate representative; the objection was raised after several minutes of her testimony and not lodged against any single response.

• Owen Shroyer, a Free Speech Systems employee who worked on InfoWars. Appellants moved for mistrial under section 41.011 before Shroyer was asked a question. On appeal, Appellants characterize the objectionable testimony as concerning internal practices and communications. Appellants also complain of Shroyer's testimony about recklessly failing to verify stories before broadcasting them and implying through questions denied by Shroyer that Appellants were responsible for the actions of Wolfgang Halbig, a non-party and non-FSS employee.

• Roy Lubitt, the parents' forensic psychiatrist. The objection was raised to a question about whether Appellants had hired a mental-health expert. Lubitt testified that he did not know of a defense expert because he had not received a report from such a witness.

• The parents. Appellants sought a mistrial based on their testimony. They complained of Heslin's testimony generally and Lewis's immediately preceding testimony that she considered a recorded message sent to other parents to be a death threat to all the families of the Sandy Hook shooting victims. Lewis agreed that “all of the other recordings from this woman” caused her fear and anxiety—fear for her surviving son, her family, and friends.

• Fred Zipp, the parents' expert on journalism and reporting. Appellants complain of Zipp's testimony that Jones “categorically rejects responsibility for his work,” that InfoWars's Sandy Hook coverage had “[c]ontempt for the parents,” and that Jones “repeatedly published misleading or outright false information.”

• Becca Lewis, the parents' expert on disinformation and conspiracy theories. Appellants complain of Becca Lewis's testimony that InfoWars “has an influence on the internet among creators of disinformation that's pretty unparalleled,” that there was universal consensus among academics that Jones was responsible for spreading lies about Sandy Hook, that she could not think of anyone working in media comparable to Jones in combining the types of disinformation he promoted plus the size and scale of his audience, and that she was confident that Jones's influence and amplification was directly responsible for poll results showing that 24% of Americans believed that “Sandy Hook” had been at least partially or fully staged.

Appellants urge that the court harmfully allowed these witnesses to testify about factors relevant to exemplary damages—namely, the nature of the wrong; the character of the conduct involved; the degree of culpability of the wrongdoer; the situation and sensibilities of the parties concerned; and the extent to which such conduct offends a public sense of justice and propriety. See Tex. Civ. Prac. & Rem. Code § 41.011(a).

We note that Appellants did not timely object at trial to every passage of testimony about which they complain on appeal. Even if we assume that the motion to bifurcate served as a running objection to non-net-worth categories of evidence relevant to exemplary damages under section 41.011(a), we find no reversible error presented. Some of the evidence summarized above is cumulative of the defaulted liability elements of the parents' claims. But most critically, we are not persuaded that the jury's compensatory damages verdict turned on the summarized testimony. We conclude that the record supports the likelihood that the jury was permissibly swayed by the parents' testimony regarding their experience and the suffering they attributed to Appellants' conduct.

Heslin testified that Appellants' broadcasts that he believed cast doubt on his son's existence and death in the Sandy Hook shooting were hurtful. Heslin testified that the broadcasts caused people to threaten his life and him to fear for his family's safety. He testified regarding the encounters he had with people influenced by Jones up to and including the morning of his testimony; he described such encounters as “an awful way of life to have to live.” Heslin said the encounters reopen the scar of his son's murder, bringing flashbacks of that day as well as memories of his son's life; he said that, while the memories were a blessing, they were also sad. He described his son's injuries and his memory of holding his son's body, a story denied by Appellants' broadcasts; when asked, “Every time that you hear this lie that Alex Jones has pushed, does it make you relive everything you just told us?” Heslin responded, “Yes, it does. I relive parts of it.” He said there were “no words” for how traumatizing reliving that experience is. He said he got anxiety, stress, and chest pains. He said it affected his health greatly and caused him to wake up with panic attacks; he said he had gone to the hospital weeks before trial because of chest pains from stress and anxiety. He testified that a few months before trial somebody drove by his home “shouting out the window ‘Alex Jones’ and it sounded like gunfire coming from the vehicle.” The jury heard Heslin's testimony about his son's life and saw his demeanor during that testimony.

Lewis testified that she learned Appellants were casting doubt on whether the shooting occurred shortly after her son was murdered. She testified that Jones pushed the theory that her son was still alive and sang with a Sandy Hook choir at the Super Bowl. She testified about contact from Appellants questioning Heslin's relationship to her son. She testified about intrusive emails from Halbig, a person repeatedly featured on Appellants' show. She testified about the experience of having a child murdered and talked about how the intrusiveness and accusations from Halbig caused fear and anxiety from feeling unsafe. She testified that Jones's “lies and conspiracy” theories caused people to come to her house. She said that InfoWars representatives would come to Sandy Hook and make “outlandish allegations and accusations and threats.” She testified that some of Appellants' listeners take everything he says at face value. She testified that a death threat to one parent felt like a death threat to all parents, causing fear for her life, her surviving son, and her family and friends. She testified that Jones on his show, during the trial, implied that she was an actress and part of the Deep State. She agreed that she was emotionally distressed by Jones's claims that he was an actor or controlled by other people, that “Sandy Hook was a total hoax; that it was a false flat; that it never happened; that there were no children killed.” She testified that Jones's comments on the radio while Heslin was testifying were “horrific.” She said that Jones's broadcasts perpetuating the idea that the shooting was a hoax generated fear that stopped the healing and mourning process. When asked “How do you recover from someone saying your child wasn't murdered?” Lewis replied, “I don't think you can recover. I don't think you do recover unless it—unless it stops.” She said that the video of the radio show about the morning testimony left her stuck. As with Heslin, jurors heard her testimony and saw her demeanor.

In light of the parents' testimony and similar evidence from other witnesses, we conclude that any error in the admission of the complained-of witnesses' testimony in breach of the bifurcation of the damages proceedings did not cause the rendition of an improper verdict on compensatory damages. We overrule issue three.

III. Appellants waived their complaint about the imposition of joint-and-several liability for exemplary damages.

By issue five, Appellants contend that the trial court erred by assessing exemplary damages against the defendants jointly and severally. See Tex. Civ. Prac. & Rem. Code § 41.006 (“In any action in which there are two or more defendants, an award of exemplary damages must be specific as to a defendant, and each defendant is liable only for the amount of the award made against that defendant.”) Appellants assert that even closely related companies cannot be held responsible for each other's exemplary damages. See Penny v. El Patio, LLC, 466 S.W.3d 914, 926 (Tex. App.—Austin 2015, pet. denied). They urge that the judgment must be reversed as a matter of law. Their complaint targets a jury award responsive to jury questions that asked in part concerning each parent: “What sum of money, if any, should be assessed against Defendants and awarded to [parent] as exemplary damages for the conduct related to Defendants' intentional infliction of emotional distress from 2013 to 2018?” The questions did not provide separate answer blanks for awards against each Appellant.

Complaints about the erroneous imposition of joint-and-several liability for exemplary damages must be timely preserved by presentation to the trial court in order to allow reversal. See Horizon Health Corp. v. Acadia Healthcare Co., Inc., 520 S.W.3d 848, 881 (Tex. 2017). Appellants do not show that they objected to this aspect of the charge. All objections to the jury charge must be in writing or dictated to the court reporter in the presence of the court and opposing counsel. Tex. R. Civ. P. 272; 278. “All objections not so presented shall be considered as waived.” Tex. R. Civ. P. 272; see also Tex. R. App. P. 33.1(a) (providing that, as prerequisite to presenting complaint for appellate review, record must show that complaint was made to the trial court by timely objection that stated grounds such that trial court was aware of complaint). “A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.” Tex. R. Civ. P. 274. There is one test for determining if a party has preserved error in the jury charge—whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling. State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992); see also Tex. R. App. P. 33.1(a). Appellants' brief does not state where they timely objected to the lack of a segregation of the exemplary damages imposed on them. The record shows that on August 3, 2022, the parties had an informal, off-the-record discussion of the charge after which the parties voiced no objection to the charge on actual damages. On August 5, 2022, Appellants' counsel said on the record that Appellants had no objections to the exemplary-damages charge, then raised an unspecified objection during the reading of the charge that was overruled as waived.

The lack of timely objection on the record to the charge allowing joint-and-several liability for exemplary damages leaves Appellants reliant on fundamental error, which is rarely used and a “discredited doctrine.” See In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003). The narrow situations in which the doctrine applies include: (1) when the record shows on its face that the court lacked jurisdiction; (2) when certain types of error exist in juvenile delinquency cases; and (3) when a public, as opposed to private, interest is directly and adversely affected as that interest is declared in the statutes or Constitution of Texas. Id. The court had jurisdiction and this is not a juvenile delinquency case. Without regard to the integrity of any veil between Jones and Free Speech Systems, the interest in segregating the damages between Jones and Free Speech Systems—particularly when liability has been defaulted at trial—is the parties' interest, not the public's interest.

Appellants did not preserve this asserted error for appellate review.⁵ We overrule issue five.⁶

IV. The trial court erred by allowing the post-trial amendment of pleadings to include a theory Appellants were not notified of before or during trial.

By issue six, Appellants complain that the trial court erred by entering judgment on a jury finding exceeding a statutory cap on exemplary damages after erroneously allowing the parents to amend their petition after trial to add “cap buster” allegations. More than a month after the jury reached its verdict, the trial court allowed the parents to amend their petition by adding the following paragraph:

The allegations of this Petition involve conduct which violates Texas Penal Code Sec. 22.04, relating to injury to a disabled individual. Plaintiffs have alleged through this Petition that Defendants intentionally, knowingly, or recklessly caused serious mental deficiency, impairment, or injury to disabled individuals. Prior to the injuries caused by Defendants in this case, Plaintiffs were disabled as they were already suffering from severe emotional disturbance.

Appellants contend that allowing this amendment was an abuse of discretion that enabled the parents to recover millions of dollars in damages above the statutory cap.

“Exemplary damages awarded against a defendant may not exceed an amount equal to the greater of: (1)(A) two times the amount of economic damages; plus (B) an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or (2) $200,000.” Tex. Civ. Prac. & Rem. Code § 41.008(b). An exemplary damages award can exceed this cap if the felonious conduct was committed knowingly or intentionally; among those felonies is injury to a disabled individual. Id. § 41.008(c)(7). A person commits an offense if he intentionally or knowingly by act or omission, causes to a disabled individual serious mental deficiency, impairment, or injury. Tex. Penal Code § 22.04(a)(2). The term “disabled individual” includes persons with severe emotional disturbance. Id. § 22.04(c)(3)(A)(iv) (referring to definition in Tex. Fam. Code § 261.001). The Family Code defines “severe emotional disturbance” as “a mental, behavioral, or emotional disorder of sufficient duration to result in functional impairment that substantially interferes with or limits a person's role or ability to function in family, school, or community activities.” Tex. Fam. Code § 261.001(9).

“A plaintiff can avoid the cap by pleading and proving the defendant intentionally or knowingly engaged in felonious conduct under criminal statutes expressly excluded from the cap under section 41.008(c).” Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 157 (Tex. 2015). The defendant has no duty to affirmatively plead the statutory cap; it automatically applies unless the plaintiff defeats it. Id. To be exempt from the statutory exemplary damage cap, plaintiffs must obtain jury findings on elements of listed criminal offenses and knowing or intentional mental state. Signal Peak Enters. v. Bettina Invs., Inc., 138 S.W.3d 915, 927 (Tex. App.—Dallas 2004, pet. struck). The cap-busting findings under section 41.008 are in addition to any findings that permit the award of the capped amount of exemplary damages. Id.

The parents did not plead the cap-busting provisions of section 41.008 before trial. They did not obtain jury findings on the elements in the jury's verdict of August 5, 2022. They moved for leave to amend their petition on September 29, 2022, after the close of evidence and the jury's verdict but before the trial court rendered judgment. The parents contended that, in light of the default judgment and the trial evidence, there was no dispute that Appellants intentionally caused emotional injury to persons already suffering from severe emotional disturbance. Over Appellants' opposition, the trial court concluded that the amendment was “procedural and therefore mandatory” and, alternatively, that any substantive amendment was permitted in its discretion. Thereafter, the court rendered judgment that undisputedly exceeded the statutory cap.

We review the trial court's permission of the parents' post-trial amendment of their petition for an abuse of discretion. Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990). A party may amend its pleadings more than seven days after trial if the party obtains leave of court to do so. Tex. R. Civ. P. 63. The trial court “shall” grant leave to amend “unless there is a showing that such filing will operate as a surprise to the opposite party[.]” Id. Courts may allow pleadings to be amended if a defect, fault, or omission in a pleading's form or substance is called to the court's attention during trial if the objecting parties fail to satisfy the court that the amendment would prejudice their ability to maintain their action or defense on the merits. Id. R. 66. Procedural trial amendments that conform the pleadings to the evidence introduced at trial must be allowed, but substantive amendments are excluded as prejudicial on their face if they assert a new substantive matter that changes the nature of the trial, the new matter could not have been anticipated by the opposing party in light of the development of the case up to the time the amendment was requested, and the amendment would detrimentally affect the opposing party's presentation of its case. Zarate v. Rodriguez, 542 S.W.3d 26, 37 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). A trial court abuses its discretion by allowing a post-verdict amendment of pleadings that allows an increase in damages sought and awarded because the amendment happened after the defendants “could not anticipate or defend against the pleading.” Group Hosp. Services, Inc. v. Daniel, 704 S.W.2d 870, 882 (Tex. App.—Corpus Christi–Edinburg 1985, no writ) (holding that post-trial timing of amendment made court's allowance of amendment harmful and an abuse of discretion).

The parents contend that their petition from the outset contained allegations that Appellants' conduct aggravated their preexisting emotional disturbance. They alleged that Jones's harassment “tore open the emotional wounds” of the grieving parents. Ms. Lewis testified at her deposition that Jones's actions complicated her grief and trauma and made it exponentially worse for the past nine years and made her fear for her safety. The parents contend that Appellants' inquiry at deposition concerning how the parents could differentiate the anguish from the loss of their son from additional suffering from Jones's conduct shows that Appellants were long aware of the issues relevant to the cap-busting statute. The parents argue that Appellants' awareness is also evident from similar questioning and testimony at trial regarding the role of Appellants' actions in the parents' suffering. The parents contend that the trial court had the discretion to allow the amendment because it was based on the same facts established through default judgment and the evidence and arguments at trial. See Ginn v. NCI Bldg. Sys., 472 S.W.3d 802, 837–39 (Tex. App.—Houston [1st Dist.] 2015, no pet.).

But the cap-busting provision required findings on elements that were not submitted to the jury. The default judgment was expressly only “with respect to liability in this lawsuit.” It did not establish the elements of exemplary damages required by section 41.003, much less the additional elements required by section 41.008(c)(7)—otherwise the latter would be unnecessary. Defamation requires proof of “(1) the publication of a false statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with the requisite degree of fault ․” Lilith Fund, 662 S.W.3d at 363. A private individual need only prove negligence, whereas a public figure or official must prove actual malice. In re Lipsky, 460 S.W.3d at 593. IIED requires a showing that “(1) the defendant acted intentionally or recklessly; (2) its conduct was extreme and outrageous; (3) its actions caused the plaintiff emotional distress; and (4) the emotional distress was severe.” See Warner Bros., 538 S.W.3d at 814. Exemplary damages require a showing of malice or gross negligence by clear and convincing evidence. See Tex. Civ. Prac. & Rem. Code § 41.003(a), (b). The elements of cap-busting go beyond all these elements in requiring findings of injury to a disabled individual, which includes findings about the mental or emotional conditions of the plaintiffs as well as the effect of Appellants' actions on the plaintiffs' mental condition. See id. § 41.008(c)(7); see also Tex. Fam. Code § 261.001(9); Tex. Penal Code § 22.04(a)(2), (c)(3)(A)(iv).

The new allegations in the amendment were not merely a recasting of existing claims to conform with the evidence but were more like a new cause of action because the cap-busting statute requires findings that were not submitted to the jury. Cf. Zarate, 542 S.W.3d at 37 (discussing procedural and substantive amendments). Under the first prong of the Zarate analysis, id., the amended pleadings required proof and findings on the new substantive matter of conduct consistent with a felony that changed the nature of the trial. The cap-busting allegations require proof under the Penal Code and Family Code that exceeds the defamation and IIED claims in the record at the time of trial, and nothing in the previous petition invokes the cap-busting elements. Appellants' presentation of their case was detrimentally affected because the amendment allowed the court to impose a much larger exemplary damage award when Appellants no longer had the opportunity to respond with evidence or trial strategy. Though the parents argue that “[t]he party opposing the amendment must present evidence to show the increase of damages resulted in surprise,” Weidner v. Sanchez, 14 S.W.3d 353, 376 (Tex. App.—Houston [14th Dist.] 2000, no pet.), the Texas Supreme Court has held that defendants have no duty to affirmatively plead the statutory cap because it automatically applies “and does not require proof of additional facts.” See Zorrilla, 469 S.W.3d at 146.

In light of the entire case, we conclude that the trial court abused its discretion by allowing the post-verdict amendment of the petition and, consequently, allowing the judgment to exceed the statutory cap on exemplary damages on grounds not pleaded or found by the jury. We strike the Fifth Amended Petition. The judgment thus is properly predicated on the Fourth Amended Petition rather than the Fifth Amended Petition authorized by the trial court's granting of the post-verdict motion to amend petition.

We sustain issue six and modify the exemplary damages award by modifying the award downward to the statutory cap of $750,000 for each defendant. Cf. id. at 158 (finding error in not imposing cap, modifying judgment by imposing statutory cap, and rendering judgment rather than remanding).⁷ In this case, the award to each plaintiff will be set at $750,000. We will also modify the judgment to state the proper iteration of the petition.

V. The parents' attorney's fees are supported by sufficient evidence.

Though they did not list it in the issues-presented section of the brief, Appellants in the body of their brief challenged the award of attorney's fees to the parents. Appellants contend that the parents' evidence was legally and factually insufficient to show that the fees claimed were reasonable and necessary. The court ordered Appellants to pay $144,100 in attorney's fees to Lewis, $33,550 in attorney's fees to Heslin, and $728,090 in attorney's fees to Lewis, Heslin, and two other plaintiffs who are not party to this appeal.⁸

Before a court may exercise its discretion to shift attorney's fees as a sanction, there must be some evidence of reasonableness; without such proof a trial court cannot determine that the sanction is “no more severe than necessary” to fairly compensate the prevailing party. Nath v. Texas Children's Hosp., 576 S.W.3d 707, 709 (Tex. 2019); see also Low v. Henry, 221 S.W.3d 609, 620 (Tex. 2007) (“[A] sanction cannot be excessive nor should it be assessed without appropriate guidelines.”). “Consequently, when a party seeks attorney's fees as sanctions, the burden is on that party to put forth some affirmative evidence of attorney's fees incurred and how those fees resulted from or were caused by the sanctionable conduct.” CHRISTUS Health Gulf Coast v. Carswell, 505 S.W.3d 528, 540 (Tex. 2016). “Contemporaneous billing records are not required to prove that the requested fees are reasonable and necessary” but are “strongly encouraged” when the reasonableness and necessity of fees are contested. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 502 (Tex. 2019). Sufficient evidence must address, at a minimum, (1) the particular services performed; (2) who performed those services; (3) approximately when the services were performed; (4) the reasonable amount of time required to perform the services; and (5) the reasonable hourly rate for each person performing the services. Rohrmoos, 578 S.W.3d at 502; see also Nath, 576 S.W.3d at 710 (holding that “the standard for fee-shifting awards in Rohrmoos likewise applies to fee-shifting sanctions”). General entries such as “Prepared for, attended and/or reviewed depositions taken in this case” are too vague to allow the court to evaluate the reasonableness and necessity of attorney's fees claimed. Enzo Invs., LP v. White, 468 S.W.3d 635, 653 (Tex. App.—Houston [14th Dist.] 2015, pet. denied).

A. Evidence of the work

The parents supported their request for attorney's fees with the April 8, 2022 declaration of Mark Bankston, one of their attorneys. Bankston stated in his declaration: “The following legal services and expenses were incurred relating to discovery, excepting services and expenses that have already been awarded in prior orders of the Court”; for each of the plaintiffs' cases, he then listed dates, descriptions, attorney names, and hours worked. For example, under the Lewis case, he lists:

December 11, 2018

Review and notes on Defendants' motion to Quash Depositions

Mark Bankston

1.5 hours

His declaration also contained a category for “All Sandy Hook cases” which included a listing of March 22, 2019–February 15, 2020 for “Document review of Defendants' initial production of over 80,000 pages at 80 pages per hour,” explaining that “the actual review took much longer.” Bankston asserted that “multiple knowledgeable attorneys” currently bill at 50 pages per hour for such document reviews. He claimed to have reviewed for 400 hours and claimed 525 hours and 75 hours for the other attorneys.

Appellants complain that the lack of detailed, contemporaneous time entries prevent meaningful review of the hours claimed. In particular, they complain that the general document-review entry covering eleven months and a thousand hours does not permit meaningful review of the reasonableness and necessity of the work done. They also complain of an entry in which Bankston claimed to have spent twenty hours in “Preparation for deposition of Neil Heslin.” They complain that the parents did not provide their actual billing statements and that the summaries are too vague. They complain that the parents did not provide their fee agreement with the attorneys and assert that hours not properly billed to one's client also are not properly billed to one's adversary under a fee shifting statute, citing Rohrmoos, 578 S.W.3d at 502. Appellants' attorney filed a counteraffidavit at trial challenging Bankston's declaration, contesting the reasonableness of the hourly rate requested and the level of particularity in the entries.

We conclude that the thirteen-page list of entries in Bankston's declaration is sufficiently specific to allow Appellants to challenge and the courts to review the reasonableness and necessity of the work done. While the entries are not on a billing statement, they contain the basic information that a billing statement would: who did what work when and for how long. See Rohrmoos, 578 S.W.3d at 502. While the large entry regarding “document review” is broad, the nature of the work is also repetitive and general. The phrase “document review” is self-explanatory, and the declaration regarding the reasonable rate of pages-per-hour substantiated the amount billed without the need for daily entries. Appellants knew what documents they produced and could have challenged Bankston's assertions of the complexity of the documents and reasonable speed needed to review them. Similarly, unlike the deficient entries about depositions in Enzo, 468 S.W.3d at 653, Bankston's declaration specified whether the hours were spent preparing, traveling to, or taking the deposition; who did the work; who was deposed; and when the work happened. The evidence was sufficient to support the trial court's determination that the work for which attorney's fees were awarded as a sanction was reasonable and necessary.

B. Evidence of the rate charged

Appellants contend that the rate of $550 per hour was not supported by evidence of customarily charged rates and not consistent with the three attorneys' varying degrees of experience. Appellants do not highlight any evidence contesting the claimed rates, asserting at most that the attorneys of varying experience should not be assessed at the same rate.

Bankston asserted that he had thirteen years of experience in tort lawsuits in twenty different states in a variety of types of claims. He said that his rate for this case was $550, which was also the rate for his co-counsel—a rate Bankston said they had previously been awarded by the same trial court. Bankston declared the rate reasonable based on the complexity of the case in the context of his familiarity with the rates charged by other attorneys with his experience in this area in high-profile defamation cases. Bankston asserted that a third attorney who was a founding partner of the firm, had twenty years of experience, and had become “one of the nation's premier litigators” normally charged $750 per hour, but that the parents were claiming only a $550 per hour rate for his services.

The evidence shows that the rate assessed is reasonable and that, if anything, sanctions assessed for one attorney's work should have been assessed at a higher rate. Because the parents did not request that higher rate at the trial court or here, we will not consider additur.

We find no abuse of discretion in the trial court's award of attorney's fees as a sanction. We overrule this assertion of error.

VI. No recalculation of prejudgment interest is required.

Appellants assert in their reply brief for the first time that the trial court erred by imposing prejudgment interest on the exemplary damages award contrary to the prohibition of such in Texas Civil Practice and Remedies Code section 41.007. “Issues raised for the first time in a reply brief are ordinarily waived and may not be considered by an appellate court.” Powell v. Knipp, 479 S.W.3d 394, 408 (Tex. App.—Dallas 2015, pet. denied). Further, Appellants do not support their bare assertion that the trial court awarded prejudgment interest on the exemplary damages award. We decline to modify the award of prejudgment interest.

CONCLUSION

We modify the judgment by reducing the exemplary damages award consistent with the statutory cap, resulting in exemplary damages awards of $750,000 to Scarlett Lewis and of $750,000 to Neil Heslin. On our own motion, we reform the judgment to refer to the Fourth Amended Petition rather than the erroneously filed Fifth Amended Petition. We affirm the judgment as modified.

Affirmed in Part; Modified and, as Modified, Affirmed in Part

FOOTNOTES

1.   The “InfoW, LLC f/k/a InfoWars, LLC” Suggestion of Bankruptcy states that the Chapter 11 bankruptcy petition was filed in cause number 22-60020 in the United States Bankruptcy Court for the Southern District of Texas, Victoria Division.

2.   Jones's Suggestion of Bankruptcy states that he filed his Chapter 11 petition in United States Bankruptcy Court for the Southern District of Texas, Houston Division in cause number 22-33553.

3.   The Texas Citizens Participation Act is codified at Texas Civil Practice and Remedies Code section 27.001, et seq.

4.   Appellants asserted in their response to the motions that they produced 7,000 pages of documents, while the parents' attorney estimated it was about 6,000 pages.

5.   Appellants in their reply brief for the first time on appeal complain that the parents were not required to prove malice, fraud, or gross negligence by clear and convincing evidence as required by Texas Civil Practice and Remedies Code section 41.003. Appellants also complain for the first time in their reply brief that the trial court gave an improper instruction on liability, omitting statutory elements, incorrectly shifting the burden of proof, and instructing the jury that liability was established.Issues first raised in a reply brief are ordinarily waived. Yeske v. Piazza Del Arte, Inc., 513 S.W.3d 652, 672 n.5 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (appellant “may not raise a new issue in his reply brief that was not discussed in his original brief, even if the new issue is raised in response to a matter in the appellee's brief but not raised in the appellant's original brief.”); Powell v. Knipp, 479 S.W.3d 394, 408 (Tex. App.—Dallas 2015, pet. denied) (“Issues raised for the first time in a reply brief are ordinarily waived and may not be considered by an appellate court.”) Further, there is no showing that these complaints were preserved at the trial court. See Tex. R. App. P. 33.1 (requiring timely presentation of complaints to trial court before presentation not appellate court), 38.1(i) (requiring that brief contain appropriate citations to record).

6.   In their reply brief, Appellants further complain that the jury instruction allowed the jury to consider evidence of acts that were barred by the statute of limitations. This argument was waived by not being raised in the initial brief. Powell, 479 S.W.3d at 408. The issue was also waived because Appellants do not show that they raised that complaint to the trial court. See Tex. R. App. P. 33.1, 38.1(i).

7.   In their reply brief, Appellants for the first time complain that the default judgment on liability issues prevents this Court from reviewing the evidence supporting the exemplary damages award as required by Texas Civil Practice and Remedies Code section 41.013. Powell, 479 S.W.3d at 408. The timely challenge to the exemplary damages award was whether the amount of the award was statutorily capped, not whether evidence supported the award.

8.   We note first that the challenged attorney's fees award was in a pretrial Order on Attorney's Fees for Plaintiff's Motion for Sanctions Regarding Corporate Deposition dated April 15, 2022, not the final judgment. The pretrial sanctions award is not contingent or based on the amount of the exemplary damages award. Thus, our reduction of the exemplary damages award does not affect this award.

Darlene Byrne, Chief Justice