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.
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
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
TABLE OF CONTENTS
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Page
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Identity of Parties and Counsel
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1
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Index of Authorities
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4
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Statement of the Case
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9
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Statement Regarding Oral Argument
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10
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Issues Presented
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10
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Statement of Facts
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11
18
22
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Summary of the Argument
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Argument
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1. Did the trial court err in denying Appellant’s
Motion to Dismiss per the Citizen Participation Act?
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22
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2. Did the trial court err in denying Appellant’s
Motion to Dismiss per the Defamation Mitigation Act?
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30
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Defamation claims
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a. Is
Appellee a limited-purpose public figure with respect to their voluntary and
public participation in non-profit, animal and bat care?
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41
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b. Is
Appellant media?
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46
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c. Are
statements about Appellee, public safety, public health, government action, statements
about matters of public concern?
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46
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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?
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49
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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?
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58
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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?
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58
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5.Did the trial court err in denying Appellant’s
Motion to Dismiss based on Statute of Limitations of one year for defamation?
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64.64
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6.Did the trial court err in denying Appellant’s
Motion to Dismiss based on lack of jurisdiction?
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66
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Summary
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68
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Prayer
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68
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Certificate of Service/Word Count
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69
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Appendix
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70
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Case Law INDEX OF AUTHORITIES
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Page
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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).
|
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)
|
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)
|
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)
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Constitutional Provisions
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U.S. CONSTITUTION, Amendment 1
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7
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Statutes and Rules
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Tex. Civ. Prac. & Rem. Code § 73.001
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21,73
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Tex. Civ. Prac. & Rem. Code § 73.051
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30
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Tex. Civ. Prac. & Rem. Code § 27.002
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22
33
34
34
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Tex. Civ. Prac. & Rem. Code § 73.055
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Tex. Civ. Prac. & Rem. Code § 73.056
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Tex. Civ. Prac. & Rem. Code § 73.057
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Tex. Civ. Prac. & Rem. Code § 166a(i)
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42
66
26
25
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Tex. Civ. Prac. & Rem. Code § 16.002
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Tex. Civ. Prac. & Rem. Code § 27.005(b)
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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
(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).
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”
as he did in the previous identical case 352-248169-10, Appeal 02-12-00285-CV.
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.
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 352nd 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 352nd 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.” 352nd 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 352nd
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
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”.
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.
________________________
Mary Cummins
Appellant In Pro Per
645 W. 9th St. #110-140
Los Angeles, CA 90015-1640
(310) 877-4770
(310) 494-9395 Fax
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
__________________________
Mary Cummins
Appellant In Pro Per
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
