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
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
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
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
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