Ronald G. Hole v. William L. Hubbard

Opinion

ACCEPTED 13-14-00617-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 4/21/2015 9:45:45 PM DORIAN RAMIREZ CLERK

CASE NO. 13-14-00617-CV

FILED IN 13th COURT OF APPEALS IN THE COURT OF APPEALSCORPUS FOR THECHRISTI/EDINBURG, TEXAS THIRTEENTH SUPREME JUDICIAL DISTRICT OF 9:45:45 4/21/2015 TEXAS PM AT CORPUS CHRISTI, TEXASDORIAN E. RAMIREZ Clerk

RONALD G. HOLE, Appellant

v.

WILLIAM L. HUBBARD, Appellee

APPEAL FROM CAUSE NUMBER 2013DCV-4177-C th 94 JUDICIAL DISTRICT COURT, NUECES COUNTY, TEXAS JUDGE BOBBY GALVAN, PRESIDING

APPELLANT’S REPLY BRIEF

Ronald G. Hole State Bar No. 09834200

HOLE & ALVAREZ, L.L.P. P. O. Box 720547 McAllen, Texas 78504-0547 Telephone: (956) 631-2891 Telecopier: (956) 631-2415 E-Mail: Mail@HoleAlvarez.com

RONALD G. HOLE, Pro Se

ORAL ARGUMENT DENIED April 21, 2015 CASE NO. 13-14-00617-CV

IN THE COURT OF APPEALS FOR THE THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT CORPUS CHRISTI, TEXAS

APPEAL FROM CAUSE NUMBER 2013DCV-4177-C th 94 JUDICIAL DISTRICT COURT, NUECES COUNTY, TEXAS JUDGE BOBBY GALVAN, PRESIDING

HOLE & ALVAREZ, L.L.P. P. O. Box 720547 McAllen, Texas 78504-0547 Telephone: (956) 631-2891 Telecopier: (956) 631-2415 E-Mail: Mail@HoleAlvarez.com

ORAL ARGUMENT DENIED TABLE OF CONTENTS

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Reply.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Disagreements With Statement of the Case and Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Brief Response to Appellee’s First Reply Point . . . . . . . . . . . . 3

C. Brief Response to Appellee’s Second Reply Point. . . . . . . . . . 4

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Certificate of Compliance .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

-ii- INDEX OF AUTHORITIES

Cases

Crain v. Smith, 22 S.W.3d 58 (Tex.App.–Corpus Christi 2000, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . 4, 5

James v. Brown, 637 S.W.2d 914 (Tex. 1982). . . . . . . . . . . . . . . . . . . . . . 4

Krishnan v. Law Offices of Preston Henrichson, P.C., 83 S.W.3d 295 (Tex.App.–Corpus Christi 2002, pet. denied). . . . . . . . . . . . . . . . . . . . . 5, 6

Russell v. Clark, 620 S.W.2d 865 (Tex. App.–Dallas 1981, writ ref’d n.r.e.).. . . . . . . . . . . . . . . . . . . . . . . . . . 5

-iii- CASE NO. 13-14-00617-CV

IN THE COURT OF APPEALS FOR THE THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT CORPUS CHRISTI, TEXAS

RONALD G. HOLE Appellant

WILLIAM L. HUBBARD Appellee

APPEAL FROM CAUSE NUMBER 2013DCV-4177-C th 94 JUDICIAL DISTRICT COURT, NUECES COUNTY, TEXAS JUDGE BOBBY GALVAN, PRESIDING

TO THE HONORABLE JUSTICES OF SAID COURT:

COMES NOW RONALD G. HOLE, Appellant in the above-entitled and

numbered cause, and files this his reply brief, and for such reply would

respectfully show unto this Honorable Court as follows:

APPELLANT’S REPLY BRIEF - PAGE 1 OF 8 I.

REPLY

Pursuant to Rule 38.3 of the Texas Rules of Appellate Procedure,

Appellant files this his reply brief, addressing matters contained within

Appellee’s Brief.

A. Disagreements With Statement of the Case and Statement of Facts

Appellant disagrees with the Statement of the Case contained within

Appellee’s Brief, wherein he asserts that the Wansey lawsuit was “a lawsuit

filed by Appellant”, as such statement is false. (C.R. p. 137) Notwithstanding

the fact that Appellee knows of this fact, and notwithstanding the fact that the

actual petition is included in the Clerk’s Record, and such document makes

it blatantly clear that the pleading at issue was filed by I. Cecilia Garza,

Appellee continues to misrepresent to this Court that the undersigned filed

such suit.

Likewise, Appellee’s Statement of Facts is objectionable. While a

Statement of Facts is required to state concisely and without argument the

facts pertinent to the issues raised, supported by record references,

Appellee’s “Statement of Facts” is little more than a rant. There are

absolutely no record references contained within Appellee’s “Statement of

APPELLANT’S REPLY BRIEF - PAGE 2 OF 8 Facts” to support his first paragraph. Appellant would state, without

argument, that such first paragraph is incorrect and false.

B. Brief Response to Appellee’s First Reply Point

There are three problems with Appellee’s position that the libelous

statement made by Appellee concerning Appellant was true. For

convenience, the libelous statement was as follows: “However, as shown by

the Supreme Court opinion, Ron has no aversion to filing a suit without merit.”

(C.R. pp. 131-32; App. 2) First, as pointed out above, Appellant (Ron) did not

file the suit Mr. Hubbard refers to in his letter, the Wansey lawsuit. (C.R. p.

186) Second, the opinion of the Supreme Court concerning such lawsuit

does not, anywhere in its verbiage, state that Appellant had no aversion to

filing a suit without merit. (C.R. pp. 138-39; App. 3)

Finally, as pointed out in Appellant’s Brief, the suit against Mr. Wansey

had merit. However, even more detrimental to Appellee’s limited

interpretation of his statement, is the common usage of the word “aversion.”

A claim that someone has “no aversion” to filing a meritless case certainly

conveys the impression that such person has, as a fact, filed cases without

merit on more than one occasion. Therefore, Appellee’s statement that

Appellant had no aversion to filing lawsuits without merit was textbook

APPELLANT’S REPLY BRIEF - PAGE 3 OF 8 defamation per se. Appellant’s summary judgment evidence established that

the affirmative defenses alleged by Appellee, including the affirmative defense

of “truth,” were completely without support in the summary judgment

evidence, and a summary judgment should have been granted as to all of

Appellee’s affirmative defenses.

C. Brief Response to Appellee’s Second Reply Point

In his response to Appellant’s Issue No. 1, Appellee offers nothing new.

It should be remembered that the sole basis for the Appellee’s Motion for

Summary Judgment in the trial court was his claim that his statement was

privileged. Appellee now confirms that his libelous statement was allegedly

published “in anticipation of threatened litigation.” Therefore it is now clear

that Appellee is no longer taking the very questionable position that his libel

was made in connection with an on-going lawsuit. Appellee’s Brief, p. 9.

While it is conceded by Appellant that James v. Brown, 637 S.W.2d 914, 916-

17 (Tex. 1982) made it clear that communications in the due course of a

judicial proceeding are absolutely privileged, since Appellee has now

conceded that his communication was allegedly made in connection with

anticipated litigation, the absolute privilege noted by the James v. Brown court

is inapplicable.

APPELLANT’S REPLY BRIEF - PAGE 4 OF 8 Likewise, Appellee’s discussion of Crain v. Smith is inapplicable. In the

Crain case this Court noted that an attorney is absolutely privileged to publish

defamatory statements concerning another in communications preliminary to

a proposed judicial proceeding in which the attorney participates as counsel,

and if the communication has some relation to the proceeding. Crain v.

Smith, 22 S.W.3d 58, 62 (Tex.App.–Corpus Christi 2000, no pet.). In that

case, this Court noted that Smith’s letter to Ramsey stated her factual

allegations and legal conclusions surrounding a proposed legal action against

Ramsey’s client. Id. at 63. Therefore, therefore the letter had some relation

to the proceeding and was written on behalf of a client. Id.

The Russell v. Clark case cited by Appellee involves a situation where

Clark was actually counsel for certain parties, and where the communication

was made during an ongoing case (between trials). 620 S.W.2d 865, 870

(Tex.App.–Dallas 1981 (writ ref’d n.r.e.). The Russell case is also dissimilar

to the instant case. Two very clear distinctions between the instant case and

all the cases cited by Appellee are that (1) in all the cases cited, the attorney

was representing a client, and (2) the improper communication actually had

some relationship to a proposed litigation.

APPELLANT’S REPLY BRIEF - PAGE 5 OF 8 Appellee’s citation to the Krishnan v. Law Offices of Preston

Henrichson, P.C. is likewise misdirected. Again, the letter at issue in

Krishnan clearly had some alleged relationship to a future proceeding – it was

a 4590i letter setting out future claims, and was required by statute to be sent

prior to a medical negligence case being filed. None of Appellee’s cases

stand for the proposition that any communication prior to a lawsuit is

privileged. The communication must be read in context and must bear some

relationship to a proposed judicial proceeding.

Mr. Hubbard’s letter was not on behalf of a client; did not discuss claims

to be asserted; did not discuss any claims to be defended; did not set out

future claims against Appellant; was not mandatory or a prerequisite to suit;

was not required by law; and only makes a passing mention of a proposed

lawsuit by Appellant against Appellee. Appellee’s letter does not bear any

relationship to a proposed, threatened or existing lawsuit. Accordingly, the

privilege does not attach and is not available.

II.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant RONALD G.

HOLE prays that the judgment of the trial court in favor of Appellee be

APPELLANT’S REPLY BRIEF - PAGE 6 OF 8 reversed, that this Court render a summary judgment in Appellant’s favor as

to his claim for defamation per se, and that this case be remanded on the

issue of damages only, and that all costs herein, including costs on appeal,

be assessed against Appellee, and for such other and further relief to which

Appellant may be justly entitled.

Respectfully submitted,

By: /s/ Ronald G. Hole Ronald G. Hole, Pro Se State Bar No. 09834200 P. O. Box 720547 McAllen, Texas 78504 Telephone No.: (956) 631-2891 Telecopier No.: (956) 631-2415 E-Mail: mail@holealvarez.com

APPELLANT’S REPLY BRIEF - PAGE 7 OF 8 CERTIFICATE OF COMPLIANCE

In compliance with Tex.R.App.P. 9.4(i)(3), I, Ronald G. Hole, hereby certify that this Appellant’s Reply Brief, excluding the sections to be excluded, contains 1,776 words. I have relied on the word count of the computer program used to prepare this document, WordPerfect X3®

/s/ Ronald G. Hole Ronald G. Hole

CERTIFICATE OF SERVICE

I, Ronald G. Hole, hereby certify that a true and correct copy of the above Appellant’s Reply Brief has, on this the 21st day of April 2015, been served via electronic transfer through an online filing service, to the following counsel of record:

William L. Hubbard Attorney at Law 62 Vista San Juan Drive Pagosa Springs, Colorado 81147-7004 E-MAIL: Hubbard43@gmail.com

/s/ Ronald G. Hole BCC:HOL-HUB\APP Ronald G. Hole

APPELLANT’S REPLY BRIEF - PAGE 8 OF 8