Mary Cummins Appeal Motion to Dismiss per Citizen Participation Act, Defamation Mitigation Act, forgery, fraud, perjury

Monday, May 1, 2017

Mary Cummins Appeal Motion to Dismiss per Citizen Participation Act, Defamation Mitigation Act, forgery, fraud, perjury

Mary Cummins Appeal Motion to Dismiss per Citizen Participation Act, Defamation Mitigation Act, Statute of Limitations, Lack of Jurisdiction, Forgery, Fraud, Perjury, 07-16-00337-CV, Texas, Freedom of Speech

Mary Cummins Appeal Motion to Dismiss per Citizen Participation Act, Defamation Mitigation Act, forgery, fraud, perjury, statute of limitations, lack of jurisdiction. Some of the formatting fell apart in the copy/paste from .doc file. Footnotes are all at the end.

http://animaladvocates.us/mary%20cummins%20appeal%20motion%20dismiss.pdf

APPELLANT REQUESTS

ORAL ARGUMENT

07-16-00337-CV

____________________________________________________________

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

Fort Worth, Texas

____________________________________________________________

MARY CUMMINS,

Defendant-Appellant,

AMANDA LOLLAR,

Plaintiffs-Appellee

___________________________________________________________

On Appeal From County Court 3

Tarrant County, Texas

Trial Court Cause No. 2015-002259-3

Honorable Mike Hrabal Presiding

___________________________________________________________

APPELLANT’S BRIEF

___________________________________________________________

Mary Cummins

Appellant In Pro Per

645 W. 9th St. #110-140

Los Angeles, CA 90015-1640

(310) 877-4770

(310) 494-9395 Fax

mmmaryinla@aol.com

IDENTITY OF PARTIES AND COUNSEL

APPELLANT:

Mary Cummins

645 W. 9th St. #110-140

Los Angeles, CA 90015-1640

Direct (310) 877-4770
Fax (310) 494-9395

mmmaryinla@aol.com

APPELLEE:

Amanda Lollar

Attorney Randy Turner

Law Offices of Randall E. Turner, PLLC
4255 Bryant Irvin Rd, #210
Fort Worth, TX 76109
Direct (817) 420-9690
Fax (817) 887-5717

randy@randyturner.com

TABLE OF CONTENTS	Page

Identity of Parties and Counsel	1
Index of Authorities	4
Statement of the Case	9
Statement Regarding Oral Argument	10
Issues Presented	10
Statement of Facts	11 18 22
Summary of the Argument
Argument
1. Did the trial court err in denying Appellant’s Motion to Dismiss per the Citizen Participation Act?	22
2. Did the trial court err in denying Appellant’s Motion to Dismiss per the Defamation Mitigation Act?	30
Defamation claims
a. Is Appellee a limited-purpose public figure with respect to their voluntary and public participation in non-profit, animal and bat care?	41
b. Is Appellant media?	46
c. Are statements about Appellee, public safety, public health, government action, statements about matters of public concern?	46
d. Did Appellee present “more than a scintilla” of evidence that any of the alleged defamatory statements were made by Appellant and meet all four of the following criteria?	49
3. Did the trial court err in denying Appellant’s Motion to Dismiss based on lack of clear and convincing evidence that Appellant allegedly defamed Appellee with malice?	58
4.Did the trial court err in denying Appellant’s Motion to Dismiss based on fraud, forgery and perjury committed by Appellee and attorney Randy Turner?	58
5.Did the trial court err in denying Appellant’s Motion to Dismiss based on Statute of Limitations of one year for defamation?	64.64
6.Did the trial court err in denying Appellant’s Motion to Dismiss based on lack of jurisdiction?	66
Summary	68
Prayer	68
Certificate of Service/Word Count	69
Appendix	70

Case Law INDEX OF AUTHORITIES	Page
BE K Constr. Co. v. NLRB, 536 U.S. 516, 534 (2002)	37
Bird v. W.C.W., 868 S.W.2d 767, 771 (Tex. 1994).	38
Carla Main et al v H. Walker Royall, No. 05-09-01503-CV, 2010 Tex. App.	41 42 41 37 49
Casso v. Brand, 776 S.W.2d 551, 554 (Tex. 1989)
Chevalier v. Animal Rehabilitation Center, Inc., 839 F.Supp. 1224, 1230 (N.D. Tex.1993)
Clark v. Jenkins, 248 S.W.3d 418, 432 (Tex. App.—Amarillo 2008, pet. denied).
Davis v. Davis, 734 S.W.2d 707, 711-12 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.).
Diaz v. NBC Universal, Inc., No. 08-1190-cv, 337 Fed. Appx. 94 (2d Cir 2009)	57
Double Diamond, Inc. v. Van Tyne, 109 S.W.3d 848 (Tex. App.‚ Dallas 2003, no pet.)	56
Dudrick v. Dolcefino, No. 14-96-01181-CV, 1998 Tex. App. LEXIS 7682 (Tex. App.Houston [14th Dist.])	47 30 66 28
Einhorn v. LaChance, 823 S.W.2d 405, 413 (Tex. App.—Houston [1st Dist.] 1992, writ dism’d w.o.j.).
Francis, 186 S.W.3d 534, 551 (Tex.2006)
Fitzmaurice v. Jones, 417 S.W.3d 627, 629-32 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
Freedom Commc‚ns, Inc. v. Coronado, 296 S.W.3d 790 (Tex. App.‚ Corpus Christi 2009, no pet.)	59
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)	18 37 66
Gonzalez v. Methodist Charlton Med. Ctr., No. 10-11-00257-CV, 2011
Grohn v. Marquardt, 657 S.W.2d 851, 855 (Tex.App.-San Antonio 1983, writ ref'd n.r.e.))
Harvest House Publishers v. Local Church, 190 S.W.3d 204 (Tex. App.‚ Houston [1st Dist.] 2006, pet. denied)	55
Henriquez v. Cemex Mgmt., Inc., 177 S.W.3d 241 (Tex. App.‚ Houston [1st Dist.] 2005, pet. denied)	58 36 38
Hill v. Herald-Post Publ’g Co., 877 S.W.2d 774, 782-83 (Tex. App.—El Paso),
James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982)
King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003)	52
Kirch v. Liberty Media Corp., 449 F.3d 388 (2d Cir. 2006)	56
Levinsky‚s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122 (1st Cir. 1997)	56 27 27 40
Culberston v. Lykos, No. H-12-3644, 2013 U.S. Dist. LEXIS 129538, at *5 (S.D. Tex. Sept. 11, 2013).
KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 689 (Tex. App.—Houston [1st Dist.] 2013, pet. denied)
Marathon Oil Co. v. Salazar, 682 S.W.2d 624, 631 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.).
Masson v. New Yorker Magazine, 501 U.S. 496 (1991)	57
Merrell Dow Pharms. v. Havner, 953 S.W.2d 706 (Tex. 1997)	52
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)	54
Moldea v. N.Y. Times Co., 22 F.2d 310 (D.C. Cir. 1994)	55
Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653 (Tex. 1987)	58
NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)	56 28
Neely v. Wilson, 418 S.W.3d 52, 70 (Tex. 2013).	56 28
Newspapers, Inc. v. Matthews, 339 S.W.2d 890 (Tex. 1960)	54 28
New Times, Inc. v. Wamstad 106 S.W.3d 916, 922-25 (Tex. App.—Dallas 2003, pet. denied)	54 28
N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964)	50 37 40 38 27 66 38
Pardo v. Simons, 148 S.W.3d 181, 189 (Tex. App.—Waco 2004, no pet.).
Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995).
Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 912 (Tex. 1942).
Rehak Creative Servs. v. Witt, 404 S.W.3d 716, 726 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).
Right to Life Advocates, Inc. v. Aaron Women's Clinic, 737 S.W.2d 564, 571–72 (Tex.App.-Houston [14th Dist.] 1987, writ denied)
Riley v. Ferguson, No. 01-09-00350-CV, 1999 Tex. App. LEXIS 2604, at *9 (Tex. App.—Houston [1st Dist.] Apr. 8, 1999, pet. denied)
Scott v. Godwin, 147 S.W.3d 609 (Tex. App.‚ Corpus Christi 2004, no pet.)	48
Shaw v. Palmer, 197 S.W.3d 854 (Tex. App.‚ Dallas 2006, pet. denied)	52 66
Truly v. Austin, 744 S.W.2d 934, 938 (Tex.1988)	52 66
Vice v. Kasprzak, No. 01-08-00168-CV, 2009 Tex. App. LEXIS 7725 (Tex. App., Houston [1st Dist.])	45
WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568 (Tex. 1998)	43 25 40
Williams v. Cordillera Commc’ns, Inc., No. 2:13-cv-124, 2014 U.S. Dist. LEXIS 79584, at 2 (S.D. Tex. June 11, 2014)
Zarate v. Cortinas, 553 S.W.2d 652, 655 (Tex. Civ. App.—Corpus Christi 1977, no writ)
Constitutional Provisions
U.S. CONSTITUTION, Amendment 1	7
Statutes and Rules
Tex. Civ. Prac. & Rem. Code § 73.001	21,73
Tex. Civ. Prac. & Rem. Code § 73.051	30
Tex. Civ. Prac. & Rem. Code § 27.002	22 33 34 34
Tex. Civ. Prac. & Rem. Code § 73.055
Tex. Civ. Prac. & Rem. Code § 73.056
Tex. Civ. Prac. & Rem. Code § 73.057
Tex. Civ. Prac. & Rem. Code § 166a(i)	42 66 26 25
Tex. Civ. Prac. & Rem. Code § 16.002
Tex. Civ. Prac. & Rem. Code § 27.005(b)
Tex. Civ. Prac. & Rem. Code § 27.011

References to the record will be as follows: “CR_*_@_#_” for the Clerkʼs Record, “RR__@__” for the Reporterʼs Record, * will be the volume, # will be the page number (per vol pg/per total pages). “Pla Exh __” for the Plaintiffsʼ trial exhibits. “Def Exh __” for the Defendantʼs trial exhibits, “RB__” for Appellee’s Reply Brief. “B” for Appellantʼs initial brief. “P” for paragraph. Appellant/Defendant Mary Cummins will be referred to as “Appellant.” Appellee/Plaintiff Amanda Lollar will be referred to as “Appellee” and “BWS” respectively. All footnotes, hyperlinks were included in the motion to dismiss and are part of the record on appeal.

STATEMENT OF THE CASE

This is an Internet defamation case. Appellee sued Appellant for defamation claiming in their petition (CR 1 @ 14) unspecified damages over items allegedly posted on the Internet. This appeal arises from a Motion to Dismiss (Original Motion CR 1 @ 24) (Amended Motion CR 7 @ 176) in the trial court. The Motion to Dismiss was per the Citizen Participation Act, Defamation Mitigation Act, Fraud, Forgery, Perjury by Appellee, Statute of Limitations and Lack of Jurisdiction.

In this current case Honorable Mike Hrabal denied Appellant’s Motion to Dismiss at the hearing on May 17, 2016 (RR 2 @ 1). This appeal is taken from the final trial court order signed May 31, 2016 (CR 9 @ 105).

STATEMENT REGARDING ORAL ARGUMENT

Appellant believes that oral argument will significantly aid in clarifying the issues involved in this appeal. The keystone of this appeal is the First Amendment protection for discussion of issues of public policy. This appeal deals with the recently enacted Citizen Participation Act and Defamation Mitigation Act which were passed to prevent frivolous lawsuits such as this case. Appellant respectfully requests oral argument if it can be done telephonically. Appellant is an indigent, out of state, disabled, pro se party without the financial or physical means to fly to Texas.

ISSUES PRESENTED

1. Did the trial court err in denying Appellant’s Motion to Dismiss per the Citizen Participation Act?

2. Did the trial court err in denying Appellant’s Motion to Dismiss per the Defamation Mitigation Act?

Defamation Claims

a. Is Appellees a limited-purpose public figure with respect to their voluntary and public participation in non-profit, animal and bat care?

b. Is Appellant “media?”

c. Are statements about Appellee, public safety, public health, government action, statements about matters of public concern?

d. Did Appellee present “more than a scintilla” of evidence that any of the alleged defamatory statements were made by Defendant and meet all four of the following criteria?

i. is a verifiable statement of fact;

ii. is false or not substantially true;

iii. is of and concerning Appellee; and

iv. is capable of conveying a defamatory meaning about Appellee?

3. Did the trial court err in denying Appellant’s Motion to Dismiss based on lack of clear and convincing evidence that Appellant allegedly defamed Appellee with malice?

4. Did the trial court err in denying Appellant’s Motion to Dismiss based on fraud, forgery and perjury committed by Appellee and attorney Randy Turner?

5. Did the trial court err in denying Appellant’s Motion to Dismiss based on Statute of Limitations of one year for defamation?

6. Did the trial court err in denying Appellant’s Motion to Dismiss based on lack of jurisdiction?

STATEMENTS OF FACTS

Appellee claims to have been defamed by alleged posts on the internet. The six page complaint (CR 1 @ 14-20) filed April 15, 2015 does not have one exhibit. The alleged contract which the complaint references was not attached to the complaint. The six page complaint contains completely false and bizarre allegations (CR 1 @ 16 item 7-9 – 17) made by Appellee about Appellant. Appellee goes so far as to falsely accuse Appellant of being a criminal “cyber-stalker” (CR 1 @ 16 item 7). Appellant has never been charged with or been convicted of any crime. Appellee’s attorney Randy Turner made a 35 page webpage about Appellant in his business website alleging false crimes, false lawsuits while talking about the size of Appellant’s breasts when Appellant was 11[1] (footnote part of motion to dismiss court record, CR 6 @ 107/1908-146/1947). Appellee has made 400 similar defamatory obscene websites about Appellant (CR 7 @ 207/2369- 218/2380) alleging Appellant is a “pedophile,” “animal abuser,” “fatty fatty fatso,” “warty pigger nosed butt fugly,” “dipshitidiot…” The web page and complaint are a defamatory smear job against Appellant in the hopes of influencing the Court and public against Appellant.

Appellant is a well respected, experienced wildlife rehabilitator, animal advocate who has gone through the police academy, humane academy and is on the Humane Society of the United States rescue team which investigates animal cruelty and abuse (CR 7 @ 183/2345)[2]. Appellant is also an expert on animal cruelty for PETA legal cases, gives presentations on animal cruelty to Animal Defense League at law schools and works with the California Attorney General wildlife programs (CR 7 @ 184/2346). Appellant has also been a real estate broker, appraiser, legal expert witness in real estate for over 30 years and been a volunteer for government agencies, schools and her church for 40 years (CR 7 @ 184/2345).

The Complaint presents a completely false record of events, important facts and even Court actions. Appellant proved the following items to be false, Appellee’s complaint (CR 7 @ 221/2383-225/2387), Appellee’s reply to motion to dismiss (CR 7 @ 225/2387-228/2390) and Appellee’s Exhibits 1-29 were forged or do not exist (CR 7 @ 228/2390-249/2411).

Appellant timely filed a Motion to Dismiss per the Citizen Participation Act, Defamation Mitigation Act, Fraud, Forgery, Perjury by Appellee and Appellee’s attorney Randy Turner, Statute of Limitations and Lack of Jurisdiction July 21, 2015 (Original Motion CR 1 @ 24) (Amended Motion CR 7 @ 176/2338).

The case was originally assigned to Judge Jennifer Rymell in County Court 2. Appellant requested that Judge Rymell be recused as Rymell and her husband attorney Chuck Noteboom are long time personal friends of Appellant’s attorney Randy Turner and his wife attorney Patti Gearhart-Turner. Appellant believed that Appellee’s attorney Randy Turner would try to “game the system”[3] as he did in the previous identical case 352-248169-10, Appeal 02-12-00285-CV[4]. Appellee’s attorney Turner was so bold as to brag to Appellant in the court room stating “I’ve known this judge for years. He’ll sign anything I put in front of him.” Appellant was not even told that there would be a substitute judge. Retired, visiting, 84 year old since deceased Judge William Brigham signed every order Appellant’s attorney wrote without reading one and without editing any. The final order was delivered to the Judge’s personal residence. The Second Court of Appeals ruled the orders were unconstitutional and reversed some orders in full and others in part. Later Appellee’s attorney Turner bragged in the court room hallway that he controlled the Judges in Fort Worth, Texas. For that reason this case was moved out of district. In this current case Turner’s friend Judge Rymell refused to recuse herself.

Judge Rymell heard Appellant’s Motion to Dismiss February 16, 2016. After hearing the Motion Judge Rymell stated she would take the case under submission and render a verdict before the end of the week. Instead after reading the Motion to Dismiss and evidence Judge Rymell immediately recused herself from the case February 18, 2016.

The case was reassigned to Judge Mike Hrabal in County Court 3.

Judge Hrabal heard the Motion to Dismiss May 17, 2016 (RR 2 @ 1-24).

Appellant presented evidence in Appellant’s Motion (CR 7 @ 176/2338+) that all items Appellant did post are not only the truth backed up by physical evidence (CR 7 @ 198/2360 – 207/2369) but they are also privileged reports to authorities, privileged legal filings and protected speech per the Citizen Participation Act. The items are matters of great public concern regarding Appellee who is a limited public figure actively involved in this public controversy. Appellant proved that Appellee did not abide by the Defamation Mitigation Act as Appellee never sent a timely demand letter or showed any proof that any item was false or defamatory as mandated by the act (CR 7 @ 193/2355-195/2357). Most importantly Appellant proved beyond a shadow of a doubt that Appellee forged most of their exhibits by adding comments made by a user “Mary Cummins” in the paper print out of online articles coincidentally within the statute of limitations (CR 7 @228/2390-246/2408). The original public articles which are still online do not have a comment by anyone on that date. Appellant did not write the articles or make the comments. Appellant also proved that Appellee forged the email of the head of the USDA (CR 7 @ 229/2391-230/2392) falsely clearing them of wrong doing two years after USDA cancelled Appellee’s permit for causing “pain, suffering and death,” “violating the Animal Welfare Act” (CR 6 @ 158/1959-159/1960). Because the exhibits were forged and Appellee stated they were authentic in their affidavit Appellee and their attorney committed perjury and fraud (CR 7 250/2412-254/2416). Appellant also proved that every item is outside of the Statute of Limitations of one year of initial posting for defamation (CR 7 220/2382-221/2383). Lastly Appellant proved that Texas is not the proper forum, venue or jurisdiction for this case (CR 7 219/2381-220/2382). Appellee admitted in the complaint that any tort happened in California (CR 1 @ 16 item 9).

Judge Hrabal stated “there was sufficient evidence in the affidavits provided by the plaintiff stating the facts on which the liability is based” (RR 2 @ 22). Appellant proved that the affidavits were false and perjured.

Judge Hrabal stated “the collateral estoppel argument by Appellee was sound and the current statements in question were repetitions of statements which were previously declared to be defamatory” (RR 2 @ 22). No specific items were ever declared to be defamatory in any court. Appellant was never even told what Appellee felt was defamatory in the previous case. The final court order written by Appellee’s attorney Turner (CR 6 @ 260/2061) doesn’t even have the word “defamation” in it. The final order was a take down order only. It states “All other relief not expressly granted in this judgment is denied.” Some of the items were made by Appellee, government agencies and others 20 years earlier. None were false or defamatory. The Appeals court could not rule that any specific items were defamatory as the trial court did not make that ruling in the final written, signed, filed order. The exhibits were never even authenticated. Additionally new information has come to light in the four years since the June 2012 trial which again prove Appellant never defamed Appellee. They also prove Appellee committed perjury in the previous identical case on the most important issues namely that Appellee was cleared of wrong doing and still had a USDA permit which they didn’t and they had lost money which they didn’t.

Judge Hrabal stated that “the retraction request, which was – I find timely filed – or served on Ms. Cummins. And so we will deny the Chapter 73 request to dismiss” (RR 2 @ 22). The request was not timely. Even if the request were timely Appellee failed to prove that the items were false or even made by Appellant which is mandatory per the Defamation Mitigation Act.

Judge Hrabal did not mention Appellant’s other causes to dismiss, i.e. forged exhibits, perjured affidavits, Statute of Limitations and Lack of Jurisdiction. Judge Hrabal denied Appellant’s Motion to Dismiss (RR 2 @ 22). This appeal is taken from the final trial court order signed May 31, 2016 (CR 9 @ 105). Appellant asks that the Appellate Court overturn the trial court’s judgment.

Appellant officially requested the Facts & Findings from the court. Appellant specifically stated that Appellant objects to Appellee writing the Facts & Findings as they did in the previous case 352-248169-10. The Court never wrote, signed, filed the Facts & Findings.

SUMMARY OF THE ARGUMENT

The trial judge erred in excluding and failing to consider critical evidence that was presented in Appellant’s Motion to Dismiss. This brief will show that Appellee has not produced competent evidence to overcome dismissal of this complaint per the Citizen Participation Act and the Defamation Mitigation Act. The items Appellant did post were the truth and of public concern. Appellant is legally a member of the digital media. Appellee is a public figure per Appellee’s own resume (CR 7 @ 409/2571-415/2576). Appellee did “thrust themselves to the forefront of particular controversies in order to influence the resolution of the issues involved." Gertz v. Robert Welch Inc., 418 U.S. 323 (U.S. 1974). Appellee made over 400 websites, blogs, Facebook pages…viciously attacking Appellant over these issues (CR 6 @ 237/2037-247/2048). Appellee’s attorney Turner links to these websites in his business website. Appellee therefore would have to prove falsity.

Appellee bears the burden of demonstrating that each statement meets all four elements of defamation, Tex. Civ. Prac. & Rem. Code § 73.001 - (1) a statement of fact; (2) of and concerning Plaintiffs; (3) capable of defamatory meaning; and (4) was false. They also must prove that Appellant wrote the statements. Appellee offered absolutely no proof of authorship or falsity. They merely falsely stated the court ruled that all statements are defamatory even statements made years after the trial which is impossible.

Appellant in their motion to dismiss went one step further than necessary by proving that the statements Appellant did make were the absolute truth (CR 6 @ 19/1820-28/1829).

The only way a public figure can win a defamation case is by proving malice. In order to prove malice Appellee would have to prove that Appellant knowingly posted false statements. Appellee did not show evidence that any of the statements were false. As none of the statements Appellant made are false, it would be impossible to prove malice.

Appellee would also have to prove that Appellant’s alleged defamation was the “proximal cause” of Appellee’s damages. As hundreds of other people, government agencies even Appellee herself have made very negative claims about Appellee for over 20 years, that would be impossible. In fact in trial Appellee stated they had no proof of any financial damages or proof of any causation by Appellant.

To survive dismissal of this action Appellee would have to prove that the items were also originally posted within the one year statute of limitations for defamation in Texas. Most of the items fall years outside of the one year limit. The more recent items were copies of much older posts. Texas has affirmed that the limitations period for defamation & single publication rule as to web-published material is when the item is first published[5].

The main piece of “defamation” evidence is the May 5, 2011 email from USDA veterinarian Dr Laurie Gage to the head of the USDA Dr Robert Gibbens in Colorado (CR 2 @ 10/316-11/317). This was four years before this case was filed April 15, 2015. Appellant did not write the email. Dr Gage is not a party to this case. The email is the truth. Only items originally posted from April 15, 2014 to the day this case was filed April 15, 2015 would be within the statute of limitations.

Appellee would also have to prove that County Court 3 in Tarrant County, Texas has jurisdiction over this case, is the proper forum. Appellee cite the BWS contract as proof of jurisdiction. BWS is not a party to this case. Appellee previously stated under oath that Appellant defamed Appellee while Appellant was in California. Proper jurisdiction would then be Federal court due to diversity of parties or California.

Lastly Appellee would have to prove that their exhibits were not forged. They’d have to prove they did not commit fraud upon the court or perjury. That would be impossible as the forgeries are extremely obvious as the actual documents are on the public internet to this very day. This is an Internet defamation case. The articles must be viewed online. Appellee and their attorney Turner stated under oath they are true copies of the originals when they are not. That is perjury. The case should be dismissed due to unclean hands. This Court has a duty to report Appellee and their attorney Randy Turner to the proper authorities and the State Bar of Texas.

Because the trial court should have considered the evidence and applicable laws, the trial court’s decision is so contrary to the overwhelming weight of this evidence as to be clearly wrong and unjust. Thus, the trial court’s judgment is not supported by factually sufficient evidence. For this reason, the case should be reversed and remanded to the trial court for further consideration.

ARGUMENT

The trial court denied Appellant’s motion to dismiss. Appellant discusses the issues presented in the order below.

Standard of Review.

This court reviews the County Court’s order denying Appellant’s motion to dismiss.

Issue No 1 restated: Did the trial court err in denying Defendant’s Motion to Dismiss per the Citizen Participation Act?

The Petition Must Be Dismissed Under the Texas Citizens Participation Act.

In 2011, the Texas Legislature, joining a number of other jurisdictions, passed the Texas Citizens Participation Act (the “TCPA”), Texas’s version of an Anti-SLAPP statute, to “encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in the government to the maximum extent permitted by law . . . .” TEX. CIV. PRAC. & REM. CODE § 27.002. The TCPA is aimed at curtailing so-called SLAPP lawsuits, which are “actions without substantial merit brought against individuals or groups with the intention of ‘silencing [the] opponents, or at least . . . diverting their resources’ . . . [and] interfering with the defendants’ past or future exercise of constitutionally protected rights.” Kathryn W. Tate, California’s Anti-SLAPP Legislation: A Summary of and Commentary on its Operation and Scope, 33 LOY. L.A. L. REV. 801, 802-03 (2000). Accordingly, the TCPA is intended to “obtain early dismissals of meritless suits which aim to chill, or retaliate against, the exercise of free speech which is in the public interest.” Williams v. Cordillera Commc’ns, Inc., No. 2:13-cv-124, 2014 U.S. Dist. LEXIS 79584, at 2 (S.D. Tex. June 11, 2014).

SLAPP lawsuits not only interfere with a defendant’s exercise of her constitutional rights, but also threaten the defendant with extreme financial liability and litigation costs, while simultaneously chilling the public’s exercise of individual rights. Dena M. Richardson, Comment, Power Play: An Examination of Texas’s Anti-SLAPP Statute and Its Protections of Free Speech Through Accelerated Dismissal, 45 ST. MARY’S L.J. 245, 253 (2014). Therefore, the TCPA is to be “construed liberally to effectuate its purpose and intent fully.” TEX. CIV. PRAC. &REM. CODE § 27.011.

The TCPA provides that “a court shall dismiss a legal action” if the defendant shows “by a preponderance of the evidence that the legal action is based on, relates to, or is in response to” the defendant’s: (1) exercise of the right of free speech, (2) exercise of the right to petition, or (3) exercise of the right of association. Id. § 27.005(b). Exercise of the right to petition is defined as “a communication in or pertaining to . . . a judicial proceeding [or] an official proceeding, other than a judicial proceeding, to administer the law . . . .” Id. § 27.001(4)(A). An official proceeding includes “any type of administrative, executive, legislative, or judicial proceeding that may be conducted before a public servant,” defined as one employed as an officer, employee, or agent of the government. Id. § 27.001(8), (9)(A).

Exercise of the right of free speech is defined as “a communication made in connection with a matter of public concern.” Id. § 27.001(3). A matter of public concern includes issues related to: (1) health or safety; (2) environmental, economic, or community well-being; (3) the government; (4) a public official or public figure; (5) or a good, product, or service in the marketplace. Id. § 27.001(7).

If the legal action is based on, relates to, or is in response to the defendant’s exercise of the right of free speech, the right to petition, or the right of association, then the court must dismiss the lawsuit, unless the plaintiff “establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.” Id. § 27.005(c). In this context, “clear” means evidence that is “unambiguous, sure, or free from doubt,” and “unaided by presumptions, inferences, and intendments.” KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 689 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (internal quotations removed) (quoting BLACK’S LAW DICTIONARY 268, 1167 (8th ed. 2004)); Rehak Creative Servs. v. Witt, 404 S.W.3d 716, 726 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).

Under the TCPA, even if the plaintiff establishes by clear and specific evidence a prima facie case as to each element of his claims, “the court shall dismiss [the] legal action” if the defendant shows by a preponderance of the evidence each essential element of a valid defense. TEX. CIV. PRAC. & REM. CODE § 27.005(d). To effectuate its purpose, the TCPA “imposes high standards for data and specificity in the pleadings” for legal actions claiming injuries from the defendant’s exercise of his or her rights of free speech, petition, and association. Culberston v. Lykos, No. H-12-3644, 2013 U.S. Dist. LEXIS 129538, at *5 (S.D. Tex. Sept. 11, 2013).

The mechanism by which the TCPA and other Anti-SLAPP statutes achieve their intended purpose of obtaining prompt dismissals of meritless SLAPP suits is to “shift[] the moment for judicial intervention back from the summary judgment stage to the motion to dismiss stage.” Tate, supra 33 LOY. L.A. L. REV. at 811. See also House Comm. on Judiciary and Civil Jurisprudence, Bill Analysis, Tex. H.B. 2973, 82d Leg., R.S. (2011) (“By allowing a motion to dismiss, CSHB 2973 would allow frivolous lawsuits to be dismissed at the outset of the proceeding, promoting the constitutional rights of citizens and helping to alleviate some of the burden on the court system.”). Accordingly, the TCPA’s statutory purpose mandates that a plaintiff filing a lawsuit that implicates the TCPA “have sufficient facts to support a claim before filing a lawsuit.” See Tate, supra 33 LOY. L.A. L. REV. at 842 (interpreting California’s Anti-SLAPP statute) (emphasis added). B. The Petition Relates to Appellant’s Right to Petition and Appellant’s Right of Free Speech.

Appellee’s Petition is based on, relates to, and is in response to Appellant’s reporting incidents to law enforcement officials, posting public information act requests online, posting documents from legal filings online and commenting about Appellee’s supposed care of bats and her bat sanctuary. These actions implicate Appellant’s exercise of her right to petition as defined under the TCPA.

Appellant’s legal filings in California and Texas were a publicly-filed pleading with the Courts. A pleading filed in court is a communication in and pertaining to a judicial proceeding. TEX. CIV. PRAC. & REM. CODE § 27.001(4)(A)(i). See also Fitzmaurice v. Jones, 417 S.W.3d 627, 629-32 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Likewise, making a police report and speaking to other law enforcement officials is a communication in and pertaining to an official proceeding because it is a communication in an executive proceeding conducted before a public servant who was an employee of a governmental body. TEX. CIV. PRAC. & REM. CODE § 27.001(8), (9)(A). See also Comstock v. Aber, 212 Cal. App. 4th 931, 941 (2012) (“The law [under California’s Anti-SLAPP statute] is that communications to the police are within SLAPP.”). Plaintiff’s allegations are all based on, relate to, and are in response to Appellant either making a police report, report to government agency, posting of legal documents or posting public information.

Alternatively, Appellant’s statements to third parties such as doctors, media outlets, and on social media implicate Appellant’s exercise of her right of free speech under the TCPA because they are statements “made in connection with a matter of public concern.” TEX. CIV. PRAC. &REM. CODE § 27.001(3). Specifically, the statements, which all relate to the reporting of a possible crime, are related to the public’s health, safety, and well-being as 74% of Appellee’s dead and dying bats tested positive for rabies (CR 6 @ 152/1953-157/1958). Id. § 27.001(7)(A), (B) (matter of public concern includes issues related to health or safety and issues related to community well-being).

These statements are also ones of public concern because Plaintiff is a limited purpose public figure. See TEX. CIV. PRAC. & REM. CODE § 27.001(7)(D) (matter of public concern includes issues related to a public figure). Although “public figure” is not defined under the TCPA, under common law defamation standards, a public figure includes both general purpose and limited purpose public figures. Einhorn v. LaChance, 823 S.W.2d 405, 413 (Tex. App.—Houston [1st Dist.] 1992, writ dism’d w.o.j.). An individual is a limited purpose public figure when: “(1) the controversy at issue [is] public both in the sense that people are discussing it and people other than the immediate participants in the controversy are likely to feel the impact of its resolution; (2) the plaintiff [has] more than a trivial or tangential role in the controversy; and (3) the alleged defamation [is] germane to the plaintiff’s participation in the controversy.” Neely v. Wilson, 418 S.W.3d 52, 70 (Tex. 2013). For example, in New Times, Inc. v. Wamstad, the court determined that the plaintiff was a limited purpose public figure with respect to an article published about his personal life because he was the subject of extensive media coverage over his contentious business and personal relationships and he participated in the ongoing discussion. 106 S.W.3d 916, 922-25 (Tex. App.—Dallas 2003, pet. denied). The court explained that the publicity issue turns on “whether the public actually is discussing a matter, not whether the content of the discussion is important to public life.” Id. at 925. Here, the controversy is public because Appellee has achieved public attention through her national press releases, press conferences, direct contact with media, being interviewed in many media articles and mentioned in books and magazines written by others. Appellee also posts all of her legal documents online, private and public information about Appellant, has written many articles about the case and even made, posted over 400 blogs devoted only to harassing, defaming, libeling, threatening Appellant in domains she purchased with Appellant’s name in them, e.g. mary-cummins.co.

The community is impacted because the public has exhibited interest in media stories about Appellee and Appellant and the events which transpired between them. Finally, Appellee occupies a central role in the controversy as one of the main individuals involved, and the alleged defamatory statements stem directly from Appellee’s role in the controversy. Accordingly, for the now-public controversy between Appellee and Appellant, Appellee is a limited purpose public figure under the TCPA and for purposes of his defamation claim. Appellee bringing this public lawsuit not under seal or with Doe names is further proof that Appellee has thrust herself into this very public debate.

For the above reasons, the Petition falls under the TCPA’s language as a lawsuit that is based on, relates to, or is in response to Appellant’s exercise of her right to petition and her right of free speech. See TEX. CIV. PRAC. & REM. CODE § 27.005(b). The Court must therefore dismiss the Petition unless Appellee can show by clear and specific evidence a prima facie case for each essential element of her claims or if Appellant establishes a valid defense by a preponderance of the evidence. Id. § 27.005(c), (d). Because the evidence establishes such defenses, which are in turn dispositive of the issues irrespective of Appellee’s offer of proof, Appellant addresses these defenses first.

Issue No 2 restated: Did the trial court err in denying Defendant’s Motion to Dismiss per the Defamation Mitigation Act?

The Petition Must Be Dismissed Under the Texas Defamation Mitigation Act.

Texas Code of Civil Procedure Section 73.051 is the Texas Defamation Mitigation Act. The purpose 73.051 is to provide a method for a person who has been defamed by a publication or broadcast to mitigate any perceived damage or injury. This subchapter applies to a claim for relief, however characterized, from damages arising out of harm to personal reputation caused by the false content of a publication. This applies to all publications, including writings, broadcasts, oral communications, electronic transmissions, or other forms of transmitting information. In this case a request for retraction was not timely made. Appellee admits Appellee never contacted Appellant after June 2010. A request for retraction was not made in the 2010 352^nd case. A request for retraction was not made in this case until long after the complaint was filed. The purpose of this act was to stop frivolous, meritless defamation lawsuits exactly like this one.

Sec. 73.055. Request for Correction (a) A person may maintain an action for defamation only if:

(1) the person has made a timely and sufficient request for a correction, clarification, or retraction from the defendant; or

(2) the defendant has made a correction, clarification, or retraction.

(b) A request for a correction, clarification, or retraction is timely if made during the period of limitation for commencement of an action for defamation.

(c) If not later than the 90th day after receiving knowledge of the publication, the person does not request a correction, clarification, or retraction, the person may not recover exemplary damages.

(d) A request for a correction, clarification, or retraction is sufficient if it:

(1) is served on the publisher;

(2) is made in writing, reasonably identifies the person making the request, and is signed by the individual claiming to have been defamed or by the person's authorized attorney or agent;

(3) states with particularity the statement alleged to be false and defamatory and, to the extent known, the time and place of publication;

(4) alleges the defamatory meaning of the statement; and

(5) specifies the circumstances causing a defamatory meaning of the statement if it arises from something other than the express language of the publication.

(e) A period of limitation for commencement of an action under this section is tolled during the period allowed by Sections 73.056 and 73.057.

Appellant has disclaimers posted on all blogs and web pages for years (CR 6 @ 160/1961). The disclaimers state “Amanda Lollar, Bat World Sanctuary, legal documents, public documents, animal cruelty reports, items of interest to public concern about public persons. Everything is the truth to the best of my knowledge. I post all underlying documents so you can come to your own conclusion. The rest is personal opinion and belief. If you see an error, email me with proof and I will edit or delete the item.”

Appellee has never made a request for retraction before filing this complaint or the previous one. A request should have been made during the statute of limitations of a year. It was not made. Plaintiff did not make a request for retraction within 90 days of publication of the item.

Appellee filed this complaint April 15, 2015. Appellant accepted this complaint May 22, 2015. Appellee had not sent a cease and desist letter, list of alleged defamatory items or proof of falsity before filing this action.

Appellee’s attorney Turner sent a demand letter July 15, 2015 to Appellant. August 3, 2015 Appellant sent an email requesting proof that the items are defamatory. August 27, 2015 Appellee’s attorney sent “Disclosure of Evidence of Falsity.” September 16, 2015 Appellant sent two emails and reply to “Disclosure of Evidence of Falsity” (CR 5 @ 74/1574-82/1582). The communications stated that Appellee did not send any proof of falsity. Appellee merely falsely states that other people and the courts stated that all the specific items attached to Appellee’s July 15, 2015 letter are defamatory. Appellant did not even write most of the items. The District and Appeals court did not rule or state that those specific items are defamatory. Most of the items in the letter were made two years after the June 2012 trial. Appellant removed all items in the August 27, 2012 order and did not replace them ever. Therefore none of those statements were even considered in the district court or appeals court.

The list of items attached to the demand letter are posts made from July 2014 to April 2015. Some are listed as 2015 when they are 2014. None of these items could be defamatory as a demand letter was not sent before filing this frivolous complaint. It had to be sent within 90 days of the original posting of the item but it wasn’t. The District and Appeals court never ruled on these statements which were made two years after the trial.

Appellee has not even stated what they feel is defamatory or how it is defamatory. Appellee never showed the elements of defamation in the district or appeals court. The final August 27, 2012 court order in the 352^nd case does not state that any of the items to be permanently removed in the order are “defamation.” The order which was void as it included prior restraint (and because Judge Brigham didn’t sign an oath of office, was only appointed for five days not the entire trial, did not reapply to be a visiting judge, did not take CE requirements, order was signed while motion to recuse was pending) merely stated Appellant is to remove some sentences and a video which Appellant did. It further states “All other relief not expressly granted in this judgment is denied.” 352^nd Court did not state in the judgment that anything was defamatory or made with malice. For this reason this petition must be dismissed.

Just to show the court how biased the 352^nd case was Appellee’s attorney Randy Turner stated in the trial that there can be no prior restraint in the court order (Trial transcript 715/200 lines 1-7) Turner examines Appellee,

Q. Now, do you understand that -- or it's your understanding that under the law the Court cannot order her to not put things up in the future, you understand that?

A. I understand that.

Q. That's called a prior restraint and we have talked about that?

A. Yes.

Turner then wrote the order himself and included prior restraint.

“IT IS ORDERED that Mary Cummins be permanently enjoined and she is ORDERED to immediately and permanently remove from the internet the following statements, files, and any video recording of any episiotomy that was recorded or made at Bat World Sanctuary.”

Appellant Has Established by a Preponderance of the Evidence of Valid Defenses to the Claims in The Petition.

1. Statements In or Relating to the Fair Reports to Authorities are Absolutely Privileged.

Statements published during the course of a judicial proceeding, including statements in an affidavit filed with a court, are absolutely privileged. Bird v. W.C.W., 868 S.W.2d 767, 771 (Tex. 1994). A party’s statements in pleadings, affidavits, and other papers in a lawsuit, including statements made in litigation in another jurisdiction, are absolutely privileged and cannot give rise to a cause of action. Davis v. Davis, 734 S.W.2d 707, 711-12 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.). The privilege is absolute because it applies even if the statement was published negligently or with malice, or even if the statement was false. James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982); Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 912 (Tex. 1942).

The absolute privilege also extends to out-of-court communications bearing some relationship to the judicial proceeding. Riley v. Ferguson, No. 01-09-00350-CV, 1999 Tex. App. LEXIS 2604, at *9 (Tex. App.—Houston [1st Dist.] Apr. 8, 1999, pet. denied) (“The standard is not relevance, but only some relation, and all doubt should be resolved in favor of the communication’s relation to the proceeding.”) (emphasis original). In Riley, the court held that a defendant mailing portions of a pleading to owners and the manager of a condominium where the plaintiff was a co-owner was absolutely privileged. Id. at *8-11. See also Hill v. Herald-Post Publ’g Co., 877 S.W.2d 774, 782-83 (Tex. App.—El Paso), aff’d in part, rev’d in part on other grounds, 891 S.W.2d 638 (Tex. 1994) (delivering pleadings in pending litigation to news media did not amount to a publication outside of judicial proceedings because the media could have found the pleadings on their own accord).

Accordingly, Appellant’s statements in legal filings are absolutely privileged because they were made in the course of a judicial proceeding. Furthermore, Appellant’s statements on social media pertained to the filing of the legal documents and corresponded to the facts alleged therein.

Statements to Law Enforcement Officials Are Qualifiedly Privileged.

Other statements Appellant’s complains of are qualifiedly privileged. A qualified privilege exists for any statements made without actual malice that: (1) “concern[] a subject matter of sufficient interest to the author, or [are] in reference to a duty owed by the author,” and (2) are “communicated to another party with a corresponding interest or duty.” Gonzalez v. Methodist Charlton Med. Ctr., No. 10-11-00257-CV, 2011 Tex. App. LEXIS 9613, at *34 (Tex. App.—Waco Dec. 7, 2011, no pet.).

The privilege applies to “initial communication[s] of alleged wrongful or illegal acts to an official authorized to protect the public from such acts.” Clark v. Jenkins, 248 S.W.3d 418, 432 (Tex. App.—Amarillo 2008, pet. denied). A police officer is a public official as a matter of law. Pardo v. Simons, 148 S.W.3d 181, 189 (Tex. App.—Waco 2004, no pet.). The privilege is qualified because it can be lost on a showing that the defendant acted with actual malice in making the statement. Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). The burden to show the defendant made the statement with actual malice rests with Plaintiff. Marathon Oil Co. v. Salazar, 682 S.W.2d 624, 631 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.). In Halbert v. City of Sherman, the Fifth Circuit held that a qualified privilege applied to a security guard’s statement to police officers that a truck driver was under the influence of drugs, even though the statement was false. 33 F.3d 526, 530 (5th Cir. 1994). See also Zarate v. Cortinas, 553 S.W.2d 652, 655 (Tex. Civ. App.—Corpus Christi 1977, no writ) (“It is obviously vital to our system of criminal justice that citizens be allowed to communicate to peace officers the alleged wrongful acts of others without fear of civil action for honest mistakes.”).

Appellant’s statements to Police, Government Agencies and any subsequent statements to other law enforcement officials enjoy a qualified privilege because they were made to public officials as part of their duty to protect the public. These statements retain their privileged status even if made as an honest mistake so long as not made with actual malice.

Accordingly, the statements in the Reports to Authorities and comments bearing some relation to the reports are absolutely privileged, and thus are not actionable, even if they are false and if Appellant acted with malice in making them (which she did not). The statements to law enforcement officials, government agencies qualifiedly privileged, and are therefore not actionable because Appellant has established the privilege by a preponderance of the evidence.

Appellee Cannot Meet Her Burden of Proving by Clear and Specific Evidence a Prima Facie Case for Each Essential Element of Her Claims.

The claims asserted in the Petition must also be dismissed because Appellant cannot meet her burden of proving by clear and specific evidence every essential element of each of his claims. In fact Appellee have failed to state a claim and have not included one bit of evidence of any claim in the complaint.

1. Defamation and Defamation Per Se Claims

To state a claim for defamation, Appellee must prove: (1) Appellant published a statement, (2) that was defamatory concerning Appellee, and (3) Appellant published the statement while acting with actual malice. Neely, 418 S.W.3d at 61. Actual malice is defined as knowledge a statement was false or reckless disregard for its falsity, and reckless disregard occurs where the speaker “entertained serious doubts as to the truth of his publication.” Id. at 69 (quoting Isaacks, 146 S.W.3d at 162). Plaintiff also bears the burden of proving the falsity of the statement because he is a limited purpose public figure.18 Casso v. Brand, 776 S.W.2d 551, 554 (Tex. 1989) (requiring a public figure plaintiff to prove falsity even when suing a non-media defendant), superseded on other grounds by, TEX. R. CIV. P. 166a(i). Here, Appellee is a limited purpose public figure because the controversy at issue between Appellee and Appellant is public, Appellee plays a direct role in the controversy, and the defamatory statements are directly related to the controversy. See Wamstad, 106 S.W.3d at 925.

For the reasons set forth above, Appellee cannot meet her burden of producing clear and specific evidence that any statements were false or that Appellant acted with actual malice in publishing them. Because the evidence shows Appellant believed her statements were true at the time she made them, and they were true, Appellant cannot produce clear evidence Appellant knew her statements were false or entertained serious doubts about their falsity, as required to show actual malice. On top of all of this NONE of Appellant’s statements were false. This was specifically proven in Appellant’s reply brief in the appeals court.

Finally, Appellee lacks clear and specific evidence that some of the alleged statements were actually defamatory. Appellee has not alleged what specific defamatory statements were allegedly made by Appellant but has merely assumed that defamatory statements were made. For all the foregoing reasons, Appellee’s defamation and defamation per se claims must be dismissed in their entirety because these claims lack clear and specific evidence of one or more essential elements as they relate to each of the alleged defamatory statements.

A. Is Appellee Amanda Lollar a limited-purpose public figure with respect to their voluntary and public participation in non-profit, animal and bat care?

Appellee is a limited-purpose public figure

There are cases where the issue of public-figure status may be a close call. This case is not one of them. Whether a defamation plaintiff is a limited-purpose public figure is a pure question of law. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998), see Carla Main et al v H. Walker Royall, No. 05-09-01503-CV, 2010 Tex. App. Three factors guide the analysis: 1) whether there was a public controversy; 2) whether the plaintiff played “more than a trivial or tangential role” in the controversy; and 3) whether the alleged defamation related to her role in the controversy. All three are satisfied here. Appellee was a limited purpose public figure years before Appellant ever went to BWS.

In this identical Texas case Chevalier v. Animal Rehabilitation Center, Inc., 839 F.Supp. 1224, 1230 (N.D. Tex.1993) a zoologist who rescued kinkajous in Texas sued an animal rescue organization for defamation. The allegation was that the zoologist did not give the animals the best care. The court ruled “Holding that a zoologist voluntarily injected himself into a controversy by appearing on television, giving interviews, and attempting to orchestrate a counter letter-writing campaign.” Appellee has released national press releases[6] about this case, given interviews to media and written many articles about these issues. Appellee’s attorney Turner actively contacted media to publicly share these issues. Appellee made hundreds of public websites about Appellant, this case, their care of bats, their non-profit organization and these issues.

Public Figure Factor 1: Appellee Lollar was a public controversy before Appellant ever commented about them

A “controversy” is “public” if “people are discussing it and people other than the immediate participants in the controversy are likely to feel the import of its resolution.” WFAA, 978n S.W.2d at 571, see also Carla Main et al v H. Walker Royall, No. 05-09-01503-CV, 2010 Tex. App. That requirement is easily satisfied here.

a. Appellees’ care of bats was and still is the subject of local and statewide discussion.

Appellant was the subject of local and state-wide debate and discussion years before Appellant interned at BWS. All told, the controversy was covered by at least 20 articles, editorials and books prior to the publication of comments by Appellant. Appellee’s own Exhibits presented at trial prove this.^{^[7]} All of the articles and books mentioned Appellee by name. These are not all books written by Appellee but ABOUT Appellee. This level of media exposure renders the controversy a very “public” one indeed.

The First Court held that because a controversy about local development plans and financing had “played out in the local media” in approximately nine published articles, that the property owners’ association board president was a limited-purpose public figure. See Vice v. Kasprzake, No. 01-08-00168-CV, 2009 Tex. Appe. LEXIS 7725, at *31 (Tex. App.--Houston [1st Dist.] Oct. 1, 2009, no pet.h.) If nine articles show a public controversy, more than 20 certainly suffices.

B. The impact of the controversy would be widely felt.

In determining whether a controversy is public, courts also ask whether the possible resolution of the conflict will impact more than just its immediate participants. See WFAA, 978n S.W.2d at 571. The controversy at issue here had and still has potentially far-reaching effects throughout the state. Appellee’s bats have tested positive for rabies. Appellee also stated she intends to treat bats with White Nose Syndrome which is contagious. This is an issue of public safety and concern which affects more than just local participants. These specific bats are migratory bats which can spread disease outside of Texas throughout the world. Thus the controversy itself affects not only all of the citizens of Texas, but the rest of the United States and the world.

C. The proper inquiry is whether Appellee was a limited purpose public figure at the time Appellant posted comments in 2010-2012.

In this situation it is clear that the public controversy existed before Appellant’s comments were made. The issues addressed in Appellant’s comments were being discussed in a public forum prior to Appellant posting them on the Internet. People have been complaining about Appellee to government agencies for over 20 years.

Public Figure Factor 2: Appellee played much “more than a trivial or tangential role” in creating the controversy.

Appellee did not just play a significant role in an ongoing controversy; she had a significant role in creating the controversy. It is undisputed that Appellee founded BWS and published a manual on the care of bats in 1994. Appellee in her book Plaintiffs’ Trial Exhibit 3, pg 203 states she is the “world’s leading expert on” “bat care” and has “trained interns and biologists.” Appellee created the internship program and invited Appellant to attend. Appellant’s comments on the Internet were about what she witnessed during the internship. In fact BWS member Cynthia Myers told Appellant to post about her negative experience on the internet to warn others. A person like Appellee who participates in “the events creating the controversy” increases their risk of public exposure. See Dudrick v. Dolcefino, No. 14-96-01181-CV, 1998 Tex. Appe. LEXIS 7682, at 25 n.11 (Tex. App.--Houston [14th Dist.] Dec. 10, 1998, pet.denied) (not designated for publication), see Carla Main et al v H. Walker Royall, No. 05-09-01503-CV, 2010 Tex. App.

Public Figure Factor 3: The supposedly defamatory statements were about the controversy which Appellee voluntarily helped create.

The final factor in the limited-purpose public figure inquiry is whether the purported defamatory speech concerned the same controversy in which the Appellee participated. WFAA, 978 S.W.2d at 571. Appellee meets this factor; Appellee does not dispute that the alleged defamation relates to her care of bats, activities at BWS, what Appellant witnessed in the internship program, and Appellee’s role in that controversy.

In sum, Appellee satisfies all three of the factors required to find that she is a limited-purpose public figure with respect to her involvement in the internship program at non-profit BWS and bat care in general. Appellee therefore has the burden of proving falsity. Because Appellees offered no contrary evidence, the trial court erred in granting judgment to Appellee.

a. Is Appellant “media?”

Appellant is a member of the electronic media. Appellant has operated online blogs and websites with paid advertisements since 1994 distributing news relative to animals, real estate, securities and crime. In Hotze v. Miller, the court held that the defendant, a physician sued for radio statements and for editorials he published in traditional newspapers and on the Internet, was a media defendant who had an established presence online and was not merely a “self-promoting” physician. 361 S.W.3d 707, 711 (Tex. App.—Tyler 2012, pet. denied).

Appellant has also written articles that have been published in well known media such as the Los Angeles Times. As Appellant is a media Appellant, Appellee had to prove the falsity of the statements. Appellee did not prove the falsity of the statements.

B. Appellees also bear the burden of proving falsity because the allegedly defamatory statements address matters of public concern.

Even if Appellee was not a limited-purpose public figure, which she is, she still would bear the burden of proving falsity for the independent reason that the First Amendment shifts the burden of proof in defamation cases where, as here, a defendant publishes allegedly defamatory statements about an issue of public concern. See BE K Constr. Co. v. NLRB, 536 U.S. 516, 534 (2002).

1. The allegedly defamatory statements were about matters of public concern.

On every level of analysis, Appellant’s criticism of Appellee involves issues of public concern. Appellant’s comments criticize Appellee’s care of bats which are the most common Rabies Vector Species (RVS) in the US. Texas has more rabid bats than any other state in the nation. Most rabid bats are found in North Texas where BWS is located. Rabies is a fatal disease. Fatal human diseases, public safety are “matters of the highest public interest and concern.”

September 1999 a bat which later tested positive for rabies bit a toddler on the cheek directly next door to BWS’s wild bat building located at 115 N.E. 1st St. in Mineral Wells, Texas. Mineral Wells Index wrote an article about the case (CR 5 @ 85/1585). The mother complained and City investigated the incident. As per documents Appellant received in a state information act request, the City came to the decision to order Appellee to “get the bats out of town”[8]. Appellee’s wild bat sanctuary was in the very center of town.

Appellee got wind of this decision and hired Texas attorney Donald Feare. Feare wrote a letter threatening to sue the City and give them bad press if they did not find the complaint “groundless” (CR 5 @ 86/1586-87/1587). The City backed down to Appellee’s bullying and did nothing. The State Health Department issued a rabies alert (CR 2 @ 358/664) and ordered all people in Palo Pinto County to exclude bats from their building. Appellee did not comply with the order.

Appellant commented about Appellee on the Internet in the wake of a public controversy, underscoring the degree to which it is about a matter of public concern. “Speech made in the context of ongoing commentary and debate in the press is of public concern to the public.” Scott v. Godwin, 147 S.W.3d 609, 618 (Tex. App. -- Corpus Christi 2004, no pet.); see also United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 466 (1995) (holding speech was on matter of public concern partly because it was made “to a public audience”).

In the trial court Appellee failed to explain why Appellant’s comments were not matters of public concern. Most of the statements Appellant made were about public concern, namely Appellee’s care of bats which are a RVS. The trial court erred in granting judgment to Appellee when most of Appellant’s statements were “of public concern.”

b. Did Appellee present “more than a scintilla” of evidence that any of the alleged defamatory statements were made by Defendant and meet all four of the following criteria?

1. is a verifiable statement of fact;

2. is false or not substantially true;

3. is of and concerning Appellees; and

4. is capable of conveying a defamatory meaning about Appellees?

III. The trial court erred in denying Defendant’s motion to dismiss because there is no evidence Appellant wrote a single defamatory statement about Appellee.

Appellant demonstrated to the trial court that Appellee should not have been granted judgment on Appellee’s libel claims because there is no evidence that any of the statements they identified were (1) a statement of fact; (2) of and concerning Plaintiffs; (3) capable of defamatory meaning; and (4) was false. Appellee also must prove that Appellant wrote the statement and there were actual damages. Because all six elements must be satisfied with respect to each allegedly defamatory statement, a failure of proof of any one of them is fatal to Plaintiffs’ libel claim with respect to that statement.^{^[9]}

Appellee was required to come forward with “more than a scintilla” of evidence regarding each ground which Appellant claimed. Tex. R. Civ. P. 166a(i); see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003). Evidence constitutes “more than a scintilla” if it “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Merrell Dow Pharms. V. Havner, 953 S.W.2d 706, 711 (Tex. 1997). The evidence introduced by Appellee fails to carry this burden with regard to a single one of the supposed defamatory statements.

Appellant recognizes that reviewing Appellee’s evidence (or the lack thereof) with respect to the separate statements is a formidable task. Nevertheless, Appellant knows that this Court will recognize it’s “obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’” Bose Corp. v Consumers Unions of U.S., Inc., 466 U.S. 485, 499 (1984) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. at 284-86). When the Court makes that examination here, it will find that none of the statements relied upon by Appellee comes close to meeting the rigorous legal standard for defamation. Judgment should have been rendered for Appellant.

Below, Appellant first discusses the law governing the four main elements on which Appellant has moved: (1) a statement of fact; (2) of and concerning Plaintiffs; (3) capable of defamatory meaning; and (4) was false.

Appellant then discusses the statements as to which Appellee failed to produce any evidence (objectionable or otherwise) and show that the trial court erred in granting judgment to Appellee. Appellant then proceeds to review each of the main claims of the statements that Appellee claims are defamatory, organizing them into groups where possible, and demonstrating that Appellee has failed to meet their burden for each and every statement by failing to show that each satisfies all elements of defamation.

Appellee Bears the Burden of Proving Defamation, Falsity.

Although truth is sometimes an affirmative defense that defamation defendants must provide in a defamation case, in this case, Appellee bears the burden of proving defamation, falsity. That is so for two independent reasons: (1) Appellee is a limited-purpose public figure, and (2) the allegedly defamatory statements involve matters of public concern. Despite well-established law and an overwhelming and uncontested factual record, the trial court mistakenly granted judgment on each of these grounds. That decision should be reversed.

A. Appellee must offer competent evidence as to each of the four independent elements to prove defamation.

1. Most of the statements cannot be defamatory because they are not verifiable assertions of fact.

The U.S. Supreme Court holds that a statement cannot be defamatory if it is not a statement of fact that can be verified. Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19 (1990). If a statement is not “objectively verifiable,” then it is opinion that is wholly protected under the First Amendment and cannot be the subject of a defamation claim. This Court has held that it is “[a]n essential element of defamation ... that the alleged defamatory statement be a statement of fact rather than opinion.” Shaw v. Palmer, 197 S.W.3d 854, 857 (Tex. Appl.--Dallas 2006, pet. denied).

Milkovich also establishes that opinions are completely protected if the factual referents are disclosed by the speaker. After Milkovich, the only “opinions” that are not protected are statements that look like opinion but imply the existence of undisclosed facts. See Milkovich, 497 U.S. at 31; Bentley v Bunton, 94 S.W.3d 561, 580-81 (Tex. 2002). When a person discloses the factual basis for her opinion, the opinion cannot be defamatory, because the reader can decide for himself whether he agrees. See Riley, 292 F.3d at 291-292 (because the defendant’s statement followed a “summary of the evidence upon which is [was] based” it was constitutionally protected opinion); Partington, 56 F.3d at 1156 (“The court of appeals that have considered defamation claims after Milkovich have consistently held that when a speaker outlines the factual basis for his conclusion, his statement is protected by the First Amendment.”); Moldea v N.Y. Times Co., 22 F.3d 310, 317 (D.C. Cir. 1994) (“the reader understands that such supported opinions represent the writer’s interpretation of the facts presented”). In this case Appellant’s statements are linked to supporting files written by others including government agencies and even Appellee.

The U.S. Supreme Court has long acknowledged that an author’s expression of opinion on matters of public concern is not actionable as defamation. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974) (“Under the First Amendment there is no such thing as a false idea.”); cf. Milkovich, 497 U.S. at 20 (“a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection”). The main principle of America’s commitment to free speech is that “expression on public issues has always rested on the highest rung of the hierarchy of First Amendment values.” See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982) (internal quotations omitted).

Appellee should not have been granted judgment on the defamation claim because Appellee could not have produced (and did not produce) any competent evidence that these statements of Appellant’s opinion were statements of verifiable fact. Some of the statements were privileged statements taken from reports which Appellant made to government agencies. The one video in question was taken and shared with permission and consent of Appellee therefore it is privileged. The other statements are linked to documents written by government agencies which show the factual basis of her opinion. Therefore they are not defamatory.

2. A statement can defame a person only if it is “of and concerning” him; some of the statements at issue are not about Appellee at all.

A statement can only defame a person if it is about that person. See Newspapers, Inc. v. Matthews, 339 S.W.2d 890, 893 (Tex. 1960). Thus, the “of and concerning” requirement “stands as a significant limitation on the universe of those who may seek a legal remedy for communications they think to be false and defamatory and to have injured them.” Kirch v. Liberty Media Corp., 449 F.3d 388, 399-400 (2d Cir. 2006). Of and concerning is a “threshold, and constitutional, matter.” Diaz v. NBC Universal, Inc., No. 08-1190-cv, 337 Fed. Appx. 94, 96 (2d Cir. 2009).

In Newspapers, Inc., the Texas Supreme Court analyzed the required connection between the allegedly defamatory statement and the defamation plaintiff and held that the connection must be very tight indeed. 339 S.W. 2d 890. In this case Plaintiff Matthews claimed the article defamed him because it said that the “operators of the Texas Body Shop” were operating an illegal insurance fraud ring, and that contained the “implication that he, Matthews, as true owner and operator of the Texas Body Shop, was operating the shop as a front for Rocha and Hisbrook in their illicit activities.” Id. at 894. The court rejected this reasoning, finding that the defamatory statement must “point to the plaintiff and to no one else.” Id. (emphasis added.).

Here, most of the statements identified by Appellee do not point to them at all. Rather, they refer to Appellee’s attorney or others--not to Appellee. Most certainly do not point to Appellees “and to no one else.” As such, they do not satisfy the Newspapers “of and concerning” standard. See id.; see also Harvest House Publishers v. Local Church, 190 S.W. 3d 204, 212-13 (Tex. App.--Houston [1st Dist.] 2006, pet. denied).

In the trial court, Appellee did not offer up any evidence on the “of and concerning” requirement which must be satisfied as to each one of the statements. The comments which Appellant did make about Appellee clearly refer to Appellee.

3. Most of the statements relied upon are not capable of defamatory meaning because they are not specific and offensive statements about Appellee.

Whether a statement is capable of defamatory meaning is an issue of law. See Musser v. Smith Protective Servs., Inc., 723 S.@.2d 653, 654-55 (Tex. 1987). Ordinary statements about legal business dealings are not capable of defamatory meaning. Non-specific statements are not capable of defamatory meaning. See, e.g. Henriquez v. Cemex Mgmt., Inc., 177 S.W.3d 241, 252 (Te. App.--Houston [1st Dist.] 2005, pet. denied); Levinsky’s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 129 (1st Cirl. 1997). Here, most of the statements identified by Appellee are not capable of defamatory meaning. The statements that are not about Appellee are not capable of defamatory meaning as to them, see, e.g., Double Diamond, Inc. v. Van Tyne, 109 S.W.3d 848, 854 (Tex. App.--Dallas 2003, no pet.).

4. Plaintiffs have failed to show that any statement is false.

If this Court finds either that Appellee is a limited-purpose public figure or that the allegedly defamatory statements were made by Appellant on matters of public concern, then Appellee also has the burden of proving falsity. Appellee has not met the burden of introducing evidence that each statement was false or not substantially true, either because they have not addressed the truth or falsity, or because their evidence shows the statement to be true, or because their evidence is insufficient. Indeed, Appellee have not met their burden on any statement at all.

As long as a statement is substantially true, it is not defamatory. Minor inaccuracies do not render a statement false for defamation purposes. See, e.g., Freedom Commc’ns, Inc. v. Coronado, 296 S.W. 3d 790, 800-801 (Tex. App.--Corpus Christi 2009, no pet.) (courts should overlook minor inaccuracies “so long as ‘the substance, the gist, the sting, of the libelous charge’ is justified” (quoting Masson v. New Yorker Magazine, 501 U.S. 496, 517 (1991)).

IV. None of the Specific Statements Identified by Appellee Defame Appellee

Appellee doesn’t actually claim as defamatory Appellant’s descriptions about what Appellee did or facts about them. This is Appellee’s defamation claim. Under the law it is not a claim of defamation at all. Defamation plaintiffs can recover when someone publishes a false statement of fact about them that is capable of defamatory meaning. Theories, conclusions, dramatic portrayals, are not actionable. As demonstrated below, none of the supposedly defamatory statements Appellee cite can support a claim for defamation.

Appellant proved in Appellant’s motion to dismiss that none of the statements were false (CR 7 @ 198/2360-207/2369). Appellant will show that not one item meets all the elements of defamation.

Appellee did not introduce one bit of evidence that would show that Appellant defamed Appellee. In fact the evidence which Appellee introduced clearly shows that Appellant did not defame Appellee. Appellee did not meet her burden in proving all elements of defamation. Appellee did not even prove that Appellant authored all of the statements. The trial court mistakenly granted judgment on the defamation claim.

Issue No 3: Did the trial court err in denying Appellant’s Motion to Dismiss based on lack of clear and convincing evidence that Appellant allegedly defamed Appellee with malice?

In order to prove malice one must prove that the party knowingly made a false statement of fact about another party which was not privileged. Appellee did not prove the items were defamatory.

Issue No 4: Did the trial court err in denying Defendant’s Motion to Dismiss based on fraud, forgery and perjury committed by Appellee Amanda Lollar and attorney Randy Turner?

Appellee, Appellee’s attorney Turner committed forgery, fraud, and perjury

In Appellant’s Motion to Dismiss Appellant painstakingly went through each item in the following category order, Perjury in Complaint, Perjury in Reply to Motion to Dismiss, Exhibits 1-29 are false, forged, Perjury in Plaintiff’s Exhibit A, sworn affidavit of Amanda Lollar, Perjury in Plaintiff’s Disclosure of Evidence of Falsity, Perjury in Complaint, Perjury in Demand Letter and Perjury by Appellee’s attorney Turner in sworn affidavit (CR 7 @ 221/2383-256/2418). Appellee forged the email of the head of the USDA (CR 7 @ 229/2391-230/2392) falsely clearing them of wrong doing two years after USDA cancelled Appellee’s permit for causing “pain, suffering and death,” “violating the Animal Welfare Act” (CR 6 @ 158/1959-159/1960). Because the exhibits were forged and Appellee stated they were authentic in their affidavit Appellee and their attorney committed perjury and fraud (CR 7 250/2412-254/2416). The complaint should therefore be dismissed with prejudice as they have unclean hands. Appellee and Appellee’s attorney Randy Turner should be charged with the crimes of perjury, forgery and fraud. Turner needs to be disbarred. Here are only a few examples of the forgery, fraud and perjury.

a. Forged email from Dr Robert Gibbens head of the USDA

Appellee forged an alleged email from Dr Gibbens the head of the USDA clearing Appellee of all wrong doing two years after the USDA cancelled Appellee’s permit. Appellant sent FOIA requests to the USDA to get a copy of the email if it existed. USDA stated they had no such document. In the meantime Appellee has posted this jpg image of the email online a few times. The email keeps changing names, dates, time, subject title… In one version of the forgery the date is June, 4, 2013 at exactly 12:00 PM, subject is FW: Bat World Sanctuary Follow Up. In another it’s Thu, 12 Dec 2013 13:05:59 -0600 (CST), subject is FW: Dr. Laurie Gage In yet another the date is November 2013. Even the text of the email changes. Below are but two of the forgeries. These are images, not text.

b. Exhibit 5 is forged

Appellee’s Exhibits 1-29 were forged. Here is but one of the forgeries. Appellee’s Exhibit 5 was not written, posted by Appellant. The article and comments were made by many different people and not Appellant. This date is February 21, 2013 outside of statute of limitations. Appellee’s Exhibit 5 is a forgery. It only shows part of the real exhibit. There is no comment by a “Mary Cummins” or anyone on July 4, 2015 2:14 pm. There are no headers or footers on Appellee’s Exhibit 5. https://www.indybay.org/newsitems/2013/02/21/18732538.php

The first paragraph of the exhibit matches the actual article. The last paragraph does not match the article. Many paragraphs are missing from the article (CR 7 @ 253/2397-254/2398)

c. Perjury in sworn filed documents.

In Appellee’s sworn affidavit Appellee states that all exhibits are true and correct copies of the originals which Appellee downloaded from the internet. This is clearly false. This is perjury.

d. Perjury in Complaint

Appellee lied about BWS’s financial situation stating they were on the “verge of bankruptcy” after Appellant left BWS June 2010. Appellee made more money than ever after Appellant left BWS. Appellee’s own bank records received in discovery submitted in the trial court prove this. So do their IRS 990 forms. This is perjury and falsification of evidence. BWS was never close to bankruptcy after Appellant left. Below is copy of BWS 990 which proves this for years 2010 to 2013.

e. Appellant did not defame Appellee in Texas or anywhere

Appellee admitted that Appellant posted items about Appellee after she left Texas and was in California where Appellant lives (CR 1 @ 16) “When she returned to California she began inventing horrible lies about Amanda Lollar and posting them in hundreds of blogs, websites and social media pages all over the internet.” Appellant only made one blog and one internet page at that time not “hundreds.” Appellant only made a couple of blogs with court documents and evidence.

Because Appellee forged exhibits and perjured herself, Appellee has unclean hands. The defense of “unclean hands,” which bars equitable relief when the plaintiff “has engaged in unlawful or inequitable conduct with regard to the issue in dispute” and such conduct has injured the defendant. See In re Francis, 186 S.W.3d 534, 551 (Tex.2006) (Wainwright, J., dissenting) (citing Right to Life Advocates, Inc. v. Aaron Women's Clinic, 737 S.W.2d 564, 571–72 (Tex.App.-Houston [14th Dist.] 1987, writ denied) and Grohn v. Marquardt, 657 S.W.2d 851, 855 (Tex.App.-San Antonio 1983, writ ref'd n.r.e.)); see also Truly v. Austin, 744 S.W.2d 934, 938 (Tex.1988) (“It is well-settled that a party seeking an equitable remedy must do equity and come to court with clean hands.”).

Appellee’s complaint must be dismissed due to unclean hands.

Issue No 5: Did the trial court err in denying Defendant’s Motion to Dismiss based on Statute of Limitations of one year for defamation?

Statute of limitations for defamation in Texas is one year

Statute of limitation for defamation in Texas is one year, Tex. Civ. Prac. & Rem. Code sec. 16.002. Not only did Appellant not write any of the items in Indybay.org, Indymedia.org, 2011 USDA email, 1999 Mineral Wells Index article, Appellee’s 1994 manual, Mineral Wells Health Dept complaints…but they were made and posted on the Internet long before the one year limitation. The statute has run for any item posted on the Internet before April 15, 2014 which is a year before this complaint was filed. The complaint was filed April 15, 2015 six days after the Appeal Opinion was filed. An item posted after April 15, 2014 that is identical to an item posted before that date is also outside the statute of limitations due to first publication standard. The time tolls from when the item was first posted. Many items in Appellee’s exhibit 1 were cut/paste from earlier posts made by Appellant and hundreds of others. That makes every alleged item outside of the statute of limitations.

Appellee in the 352-248169-10 case filed a motion May 2012 to add more statements to the injunction. Judge Bonnie Sudderth denied that motion. In that same hearing Judge Sudderth stated she would not have forced Appellant to remove items posted by third parties on sites controlled solely by third parties. Exhibit 18 in the trial case were items written and posted by known and unknown people, robots other than Appellant. Appellee should have sued those people but didn’t. Instead they sued indigent out of state pro se Appellant and used the court order to remove other people’s websites by threatening to sue the hosts.

Exhibit 19 was Appellant’s fair and privileged reports to authorities. Plaintiff admitted in trial court that Exhibit 19 is not defamatory. Exhibit 17 which was never authenticated were the alleged defamatory items. 95% of Exhibit 17 was the results of FOIA, state info act requests and Appellant’s reports to government agencies. Those items were written by government officials, Appellee and members of the public other than Appellant. They are all privileged and could never be Appellant’s defamation.

None of the items in Appellant’s new Exhibit 1 are defamatory. If the items were defamatory, the statute of limitations has already run.

Issue No 6: Did the trial court err in denying Defendant’s Motion to Dismiss based on lack of jurisdiction?

County Court 3 lacks personal jurisdiction, subject matter jurisdiction, is improper venue, forum

Appellee’s complaint is for defamation. This complaint is copy/paste of the original case 352-248169-10 Appeal 02-12-00285-CV. This complaint was filed within days of the Appeals Court opinion. As previously proven the Second Court of Appeals ruled that there was no breach of contract. Appellee did not appeal. The time to appeal has run so there can be no appeal.

Appellee includes the false breach of contract claim in order to have the forum be Tarrant County, Texas per the contract which Appellant never signed. Appellant believes that is why the breach of contract claim was included in the original 2010 complaint besides to hopefully collect attorney’s fees. Appellee has stated repeatedly on the record that Appellant wrote and posted the alleged defamatory items after Appellant left Texas and returned to her home in California.

From Appellee’s current complaint,

“When she (Appellant) returned to California she began inventing horrible lies about Amanda Lollar and posting them in hundreds of blogs, websites and social media pages all over the internet” (CR1 @ 16).

Appellee never stated Appellant allegedly defamed them in Texas. The correct forum for this case would therefore be Federal District Court due to diversity of parties or California.

Appellee’s attorney Turner wants the forum to be Tarrant County, Texas as he and his wife Patti Gearhart-Turner have been lawyers in this area for over 30 years. They are personal friends with many Judges and Justices and are on the same committees and boards. Turner bragged to Appellant in court before the May 2011 injunction hearing “I’ve known this judge for years. He’ll sign anything I put in front of him.” Judge William Brigham did exactly that. Appellant witnessed Judge Brigham flip to the last page of the six page single spaced order and just sign it. Judge Brigham did not even read it. That order contained websites Appellant had never seen and didn’t control. Some were even in different languages such as Chinese which Appellant can’t read, write or speak. Turner is so bold as to continually brag about being able to control the court. This court lacks jurisdiction for this case.

///

SUMMARY

Despite well-established law and an overwhelming and uncontested factual record, the trial court mistakenly denied Appellant’s motion to dismiss. That decision and judgment should be reversed.

PRAYER

For the foregoing reasons, and pursuant to Texas Rule of Appellate Procedure 43, Appellant Mary Cummins asks this Court to sustain the issues presented, hold that the trial court erred in ruling for Appellee, reverse the district court’s order, and render the judgment the trial court should have rendered. Appellant also requests that the April 2014 Second Court of Appeals opinion be reversed for the defamation claim for all the reasons stated herein. Appellant requests all other appropriate relief to which she is entitled including attorney’s fees and all related costs.

Respectfully submitted,

________________________

Mary Cummins

Appellant In Pro Per

645 W. 9th St. #110-140

Los Angeles, CA 90015-1640

(310) 877-4770

(310) 494-9395 Fax

mmmaryinla@aol.com

CERTIFICATE OF WORD COUNT

This document complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no smaller than 14-point for text and 12-point for footnotes. This document also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains 12,373 words <15,000), excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).

CERTIFICATE OF SERVICE

On October 21, 2016, in compliance with Texas Rule of Appellate Procedure 9.5, I served a copy of this brief upon all other parties to the trial court’s judgment by electronic filing via eFileTexas.gov deliverable as follows:

Amanda Lollar

Attorney Randy Turner

Law Offices of Randall E. Turner, PLLC
4255 Bryant Irvin Rd, #210
Fort Worth, TX 76109
Direct (817) 420-9690
Fax (817) 887-5717

randy@randyturner.com

__________________________

Mary Cummins

Appellant In Pro Per

APPELLANT’S

APPENDIX

TABLE OF CONTENTS

Relevant Trial Court Orders

1. Signed May 31, 2016 court order on motion dismiss (Tab 2)

2. Court order August 27, 2012 trial (Tab 3)

[1] Randy Turner’s ihatemary page in his business website via the web archive http://web.archive.org/web/20160320230151/http://www.randyturner.com/randys-cyber-stalker

[2] Mary Cummins biography http://wikipedia.marycummins.com/

[3] “Visiting Judges used to ‘game the system’” http://web.archive.org/web/20110110030653/http://www.legalreform-now.org/menu2_4.htm

[4] Appeal of case 352-248169-10 02-12-00285-CV http://www.search.txcourts.gov/Case.aspx?cn=02-12-00285-CV&coa=coa02

[5] Limitations period for defamation & single publication rule as to web-published material in Texas

http://causeofactionelements.blogspot.com/2014/11/limitations-period-for-defamation.html

[6] Appellee releases national press release http://www.prnewswire.com/news-releases/bat-world-sanctuary-and-its-president-amanda-lollar-awarded-61-million-in-defamation-lawsuit-against-mary-cummins-159215505.html

^{^[7]} Plaintiff's Exhibit 1, “Captive Care and Medical Reference for the Rehabilitation of Insectivorous Bats,” Exhibit 3, “Standards and Medical Management for Captive Insectivorous Bats,” Exhibit 5, "The Bat in My Pocket," Exhibit 6, "Bats in the Pantry," Exhibit 7 "BWS Fall/Winter 2011,” Exhibit 8, "Bat Conservation International Summer 1999," Exhibit 10 "Texas Parks & Wildlife August 2007," Exhibit 11 "Bat Conservation International Fall 2004," Exhibit 13 "Bat Conservational International Summer 2000,” Exhibit 14, "Radical Virtues," and Exhibit 15, "Our Best Friends Autumn 2009."

[8] Mineral Wells Rabies Report Bat World http://animaladvocates.us/batworldlawsuit/Bat_World_Sanctuary_Rabies_Incident_Report.pdf

^{^[9]} The first three elements are necessary for any defamation claim. The fourth one, falsity, is Plaintiffs’ burden if they are a public figure or if the topic is one of public concern. As shown above, those requirements are satisfied here, so Plaintiffs bear the burden on falsity as well.

Mary Cummins vs Amanda Lollar, Mary Cummins, Amanda Lollar, Bat World, Bat World Sanctuary, Randy Turner, Randall Turner, Randall E Turner, Randall Eugene Turner, attorney, lawyer, fort worth, texas, tarrant county, second court of appeals, 352-248169-10, 352nd District Court, Judge Bonnie Sudderth, Justice Bonnie Sudderth, Judge William Brigham, Justice William Brigham, 2015-002259-2, 2015-002259-3, 02-12-00285-CV, 02-16-00165-CV, county court 3, Judge Mike Hrabal, Mike Hrabal, Judge Jennifer Rymell, Jennifer Rymell, defamation, libel, slander, breach of contract, forgery, fraud, perjury, disbar, unethical, unprofessional, inappropriate

Mary Cummins

Mary Cummins of Cummins Real Estate Services has been in real estate since 1983, over 35 years. She is licensed by the Bureau of Real Estate Appraisers. Mary Cummins was an agent and broker licensed with the California Department of Real Estate selling residential income, commercial buildings, raw land and homes for Merrill Lynch Realty in Beverly Hills and Westside Properties in Los Angeles before concentrating on appraisals. Mary Cummins currently provides real estate appraisals, expert witness testimony, historical research, legal real estate research for mortgage brokers, banks, lawyers, factors, insurance companies, financial consultants and private individuals. Mary Cummins was born and raised in Southern California. Cummins attended Beverly Hills Good Shepherd Catholic School and Beverly Hills High School. Besides being on the Dean's list, Mary Cummins was a top ten national swimmer and competed on the men's water polo team. Mary Cummins began college at the age of 15 attending the University of Southern California on scholarship, majoring in Psychology/Sociology. http://www.animaladvocates.us http://www.facebook.com/AnimalAdvocatesUSA

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Summary of Case 352-248169-10

Summary of Case Mary Cummins v Amanda Lollar, Bat World Sanctuary

I reported Amanda Lollar of Bat World Sanctuary to authorities for animal abuse, animal cruelty, animal neglect, violations of the Animal Welfare Act, Texas Health Dept, Texas Parks & Wildlife and USDA. They were investigated. Violations were found. Authorities agreed with me. They lost their USDA permit and were severely reprimanded by the other agencies.

In retaliation I was sued for defamation and breach of contract. Every word I have ever said about Amanda Lollar and Bat World Sanctuary is 100% the truth backed up by physical evidence, i.e. photos, videos, government documents.

Moments before a hearing Plaintiffs' attorney Randy Turner came up behind me in court and said to me "I've known this Judge for many years. He'll sign anything I put in front of him." I didn't even know there was a substitute Judge. The Judge signed every order Turner ever wrote. The first order he signed in front of me. Judge Brigham looked at me, did not look at the order, flipped to the last page and signed it.

Without notice Court had 86 year old retired Judge William Brigham oversee the case. Even though Plaintiffs never proved the elements of defamation, breach of contract, malice, admitted they had no proof of any damages or causation, I lost the case to the tune of $6,176,000. I never even was told which items they thought were defamatory until two months after the trial in the form of the court order. That's how corrupt this case is.

Immediately after the trial Randy Turner, his wife Patti Gearhart-Turner took to the Internet to say how happy they were. They congratulated each other over their win against me. Who brags about lying, cheating and being corrupt publicly?

The court order contained 47 phrases and a video which I had to remove and never repost. The order was unconstitutional as it contained prior restraint. Nevertheless I obeyed the court order and appealed.

Lollar and her attorney Turner used that order to remove any article on the entire Internet that mentioned them that they did not like even articles from years earlier written by others. They used that order to remove a press release about my appeal in prweb. They used it to remove copies of my appeal or articles about my case made by others. They used it to remove all of my blogs if they included the word "bat" and didn't even use their name.

In my appeal I proved beyond a shadow of a doubt that the 47 phrases were not defamatory. I didn't even write most of them. Plaintiff wrote them! Most of the phrases came from Lollar's manual. Other phrases came from government reports I received in a 1,000 page Freedom of Information Act request. I received 20 years worth of complaints against Lollar made by government agencies, members of the public and others.

The video was a video which I took of Lollar who has not gone past the 8th grade trying to perform an episiotomy on a bat who died along with her baby. Lollar told me to take the video. I had oral and written permission. Lollar claimed my video was defamatory and trial court agreed.

In Appellees' reply brief they didn't even mention the 47 phrases or video. They just said they felt they were defamed.

Appeals Court released their opinion. Justice Lee Ann Dauphinot stated that defamation does not have to be proven with private individuals. We were all private individuals and not media, public figures. The issues were not of public concern. Defamation is assume. Dauphinot also stated that I defamed with malice. In order to prove malice one must first prove defamation. Not letting the law, case precedent or common decency get in the way the defamation claim stood. I still owe $6,000,000. The breach of contract, liquidated damages and attorney fees were reversed. I owe $176,000 less.

Even after the Appeals court ruled the order unconstitutional Turner and Lollar continued to use it to remove my blogs, articles, websites from the Internet. They had over 800 articles deleted which caused huge financial damages to our non-profit. The only ones who didn't remove their articles were Eugene Volkhart UCLA freedom of speech law professor and Indymedia who is represented by ACLU-NC.

Randy Turner and his wife Patti Gearhart-Turner have been personal friends with all those Judges and Justices for over 35 years. Turner bragged to me that he controlled the Judges in Fort Worth, Texas and he was right.

These same Judges on my panel were on another case of Randy Turner's that had to do with the sentimental value of a dog i.e. Medlens v Carla Strickland. As per the Supreme Court the case should have been dismissed in the District Court but Turner's Judge friends made sure it was not dismissed. It was appealed and Turner et al made sure it was affirmed.

Fortunately attorney John Cayce who used to be the Chief Justice of the Second Court of Appeals petitioned to the Supreme Court of Texas. The Supreme Court of Texas in unanimous decision reversed the Appeals Court opinion. The Supreme Court opined that law and case precedent clearly states animals are property. One cannot receive sentimental value for loss of an animal if one cannot receive sentimental value for loss of a sister or friend. One would need to petition for new legislation to change the laws in order to award sentimental dollar damages for loss of an animal.

During all this time Amanda Lollar of Bat World Sanctuary and a few of her crazy friends such as her attorney Randy Turner have been attacking, defaming, harassing me, my family, friends, colleagues.... They have filed completely false reports to authorities about me. As I obey every law the authorities have done nothing. They don't even read her false reports anymore.

A last note. I believe Randy Turner has early dementia or some other brain disorder. He accidentally calls me "Ms Turner" and "Ms Lollar." He filed a motion to strike HIS OWN expert witness. Even after I told him it was his witness he still set the hearing. In depo he looked at me confused and said "didn't you give me the defamatory statements?" I said "of course not. I'm the defendant." He also leers at me inappropriately and intentionally bumped his entire body against mine in the court hallway just to be a jerk. He also stupidly admitted to committing motion abuse in writing then threatened to do it again if I didn't sign an impossible court order against myself. On top of this he has an ihatemary page in his business website devoted to me. In that page he talks about the size of my breasts when I was 11 and other extremely inappropriate things. 95% of his page is defamation against me. He's a lawyer and knows those cases he cited are not mine.

Fighting for Justice,

Mary Cummins

Summary of Case 2015-002259-3

Amanda Lollar and Bat World Sanctuary sued me September 2010 for defamation and breach of contract, see above summary. Even though they did not show the elements of defamation or breach of contract, damages, causation, malice...I lost.

I appealed that to the Second Court of Appeals. All claims were reversed except defamation. The Court stated that "defamation is assumed." It does not have to be proven. That's like saying murder, robbery, rape is assumed. It doesn't have to be proven. The also ruled that Plaintiff did not have to tell me what they thought was defamatory. The items in the court order were supposedly just items to be removed. They were not the defamation. That means I never was told what they thought was defamatory.

Even though the trial court order stating I had to take down certain items and never repost them had been reversed, I did NOT post the items again.

Few days after the April 2015 opinion was released Amanda Lollar and her attorney Randy Turner filed an identical copy/paste lawsuit in County Court 2 with Judge Jennifer Rymell friend of Randy Turner and his wife Patti Gearhart-Turner. The lawsuit claimed I reposted all of the items. That is false. The lawsuit included the claims which were reversed namely the breach of contract, liquidated damages and attorney's fees.

They included the fake, forged breach of contract claim because the contract has a forum clause of Tarrant County, Texas. Plaintiff stated repeatedly that I allegedly defamed them only while in California, not Texas. Therefore proper jurisdiction is California or Texas Federal Court. Randy Turner doesn't control those judges but he does control Tarrant County judges along with his wife.

I filed a Motion to Dismiss per Texas Defamation Mitigation Act, Citizen Participation Act, Statute of Limitations, Lack of Jurisdiction, Failure to State a Claim, Forgery, Fraud and Perjury.

Per the Texas Defamation Mitigation Act they must first send me a cease and desist including the specific alleged defamation before they file a lawsuit. Texas is bogged down by tons of these good ole boy STFU lawsuits to quiet people just like me. Lollar did not do this. They just filed the lawsuit instantly.

Per the Defamation Mitigation Act if the defendant asks for proof that the items are defamatory, the Plaintiff must send proof. Lollar sent no proof that I defamed her. Instead her attorney Randy Turner argued that the Appeals Court ruled that everything I ever said was defamatory. The appeals court never stated what was defamatory neither did the Plaintiff. It was not in the signed, filed court order. The words "defamation" and "defamatory" are not in the court order. The only thing that matters in a court is the final signed and filed court order. The final order was only a take down order and it was unconstitutional. Randy Turner is a personal injury lawyer not a freedom of speech lawyer. Still, with the help of his corrupt judge friends and other court parties he could spit on a piece of paper, file it and win by default as a Plaintiff. It took the appeals court 18 months and a change of three judges to write their rationalization of "justice?"

This is the wildest part of this current case. I never defamed Amanda Lollar or Bat World Sanctuary. They tried to claim I wrote certain articles on Indymedia, blogs, other websites... Those articles were written by known others, unknown others, robots and even Amanda Lollar herself.

In the trial court I was only told to take down items which I allegedly posted in sites I allegedly controlled, Exhibit 17. Items posted by others Exhibit 18 and my fair and privileged reports to authorities Exhibit 19 were not in the final order. Nothing in any of exhibits 17, 18 or 19 was defamatory.

In the current case they could only sue me for items I wrote, posted within the one year of statute of limitations for defamation in Texas. That would be items within a year of their April 2015 file date. I didn't defame them so they had no evidence. What did they do? They forged the evidence! Namely Amanda Lollar made defamatory statements about herself and signed my name to them in public websites with anonymous users.

It's even more bizarre. Lollar defamed herself, added my name to the comment, used a date within the one year statute of limitations but she didn't publish the comment. She instead used the top of the real article and posted the fake comment on it, printed it out and used it as an exhibit. The comment is not on the public article. No one made a comment on that day or even that year. The articles were from 2011. Why would anyone still be commenting on it four years later? Almost every single exhibit was forged!

After Lollar forged the exhibits she signed a sworn affidavit stating they are true copies of the exhibits online. I easily proved they were forged. The articles are still online for easy viewing.

It gets even more bizarre. Dr Laurie Gage of USDA wrote an email stating she viewed the video of Lollar trying to do an episiotomy in 2011. Dr Lauie Gage stated Lollar caused "bats pain, suffering and death," and "violated the Animal Welfare Act." Lollar lost her permit after Dr Gage wrote that email. Lollar of course in trial stated she was investigated and no violations were found in June 2012. She was already found guilty and lost her permit. Perjury and fraud.

How does Lollar deal with the 2011 email stating she was guilty of animal cruelty? She forged the head of the USDA Dr Robert Gibbens email. In the forged email Dr Gibbens allegedly clears Lollar of all wrong doing and trashes me. I've communicated with Dr Gibbens for years. He was always polite and honest. I knew he didn't write that email so I did a Freedom of Information Act request to get a copy. I actually did three. The email does not exist. I then did a search and realized that Lollar forged three separate versions of the emails with different subject, text, dates...!

Randy Turner then uses that forged email to state that I caused Dr Gage to write a defamatory email by lying to her. I've never communicated with Dr Gage ever. Turner stated Dr Laurie Gage's 2011 email written in Colorado is MY defamation. That's the basis of the current case! The entire current lawsuit is forgery, fraud, perjury and just plain bizarre. They knew her email was the truth. If it were defamatory, they should have sued USDA, Dr Gage in Colorado within a year of the 2011 email. That would have been before my trial in June 2012. This is how corrupt the Texas judicial system is! In fact it's so corrupt that Turner, his client and now three judges brag about how corrupt they are.

Anyway I filed two motions to recuse Judge Jennifer Rymell due to bias. Rymell refused to recuse herself. The Motion was heard February 16, 2016 by Judge Jennifer Rymell. Rymell stated she would rule and sign an order before the end of the week. Instead after finally reading my motion and seeing the evidence Judge Jennifer Rymell recused herself. Take a look at the article on Texas lawyers and judges gaming the system in the links. Many Texas journalists wrote about this same gaming of the system. It appears Rymell was not willing to destroy her reputation by falsely ruling in favor of her friend so she decided not to rule at all. That's gaming the system. Judge and lawyers both do it. Rymell should have ruled in my favor and reported her friend Turner but she didn't. She passed the buck to Judge Mike Hrabal.

The case was reassigned to Judge Mike Hrabal in County Court 3. The motion was heard May 17, 2016. I argued my side. Randy Turner stated they had nothing to add that's not in his reply. Randy Turner said their proof of defamation is the (perjured) affidavit of Amanda Lollar. Lollar merely stated that I defamed her. Then she stated the exhibits were true copies of the originals online which they were not.

Judge Mike Hrabal instantly gave an oral order. He said "I believe there is enough evidence to support Plaintiff's claim. Motion is denied." That was it. Judge Mike Hrabal did not sign an order on the motion or my indigence. I filed an appeal as indigent to the Second Court of Appeals. That is the status of this case as of May 22, 2016.

In the meantime Randy Turner is filing motions for contempt, sanctions because I told him I can't physically go to Texas due to my indigence and back injury. I'm awaiting back surgery and am now legally, permanently disabled. The kicker is I injured my back while in the old wild Bat World Sanctuary! Randy Turner has been telling me he will throw me in jail for five years now. I believe there is something very wrong with Randy Turner. There is something even more wrong with the Texas Judicial system when corruption, fraud, forgery and perjury is rewarded in this manner.

*Mary Cummins Disclaimer

This blog contains a copy of the public legal documents filed in this lawsuit. It will also include the hearing minutes and record. The purpose is to show people what is happening in this lawsuit.

The items in this blog are of public interest and concern. The images, quoted text and video snippets are used under the Fair Use of Copyright act for non-profit comment and education. Everything in this blog is the truth to the best of my knowledge. If you see a mistake, please, contact me with proof so I can edit or delete it.

I generally post links to back up all of the statements I make so you can review the documents and come to your own conclusion. Everything else in the blog is my personal opinion and belief. Nothing in this blog is confidential. Everything is public information. The purpose of this blog is to share this public information about public people for the good of the public.

If you don't like the honest items I've posted here and want to sue me, I will file an anti-SlAPP motion and you will owe legal fees. I have been sued twice before for defamation. I represented myself both times and won. The first was Ashton Technology, Fredric Rittereiser vs Mary Cummins. The second was Kathy Knight-McConnell vs Mary Cummins. A third case which this blog is about is currently in Appeal.

Monday, May 1, 2017

Mary Cummins Appeal Motion to Dismiss per Citizen Participation Act, Defamation Mitigation Act, forgery, fraud, perjury

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