Brief of Appellant Jay W. Hand

– Page 1 Appeal No. 02
- 15
- 239
- CV
IN THE SECOND DISTRICT COURT OF APPEALS

AT FORT WORTH, TEXAS

            JAY W. HAND

– Appellants/Defendants

v. HARRIS HUGHEY

– Appellee/Plaintiff On Appeal from the 367 th Judicial District Court

Denton County, Texas, The Hon. Vickie Isaacks presiding

            BRIEF OF APPELLANT JAY W. HAND            


### JOHNSTON LEGAL GROUP PC Michael W. Johnston State Bar No. 10840300 Nathan Schattman State Bar No. 00791606 4200 Airport Freeway Fort Worth, Texas 76117 Telephone: (713) 830-4816 Facsimile: (713) 830-4815
ATTORNEYS FOR APPELLANT

**APPELLANT REQUESTS ORAL ARGUMENT** ACCEPTED 02-15-00239-CV SECOND COURT OF APPEALS

FORT WORTH, TEXAS 9/24/2015 10:30:44 AM DEBRA SPISAK CLERKBrief of Appellant Jay W. Hand

– Page 2 Appeal No. 02
- 15
- 239
- CV
IN THE SECOND DISTRICT COURT OF APPEALS

A T FORT WORTH, TEXAS

            JAY W. HAND

– Appellant s/Defendants

v. HARRIS HUGHEY

– Appellee /Plaintiff On Appeal from the 367 th Judicial District Court

Denton County, Texas, The Hon. Vickie Isaacks presiding

            IDENTITY OF PARTIES AND COUNSEL

           

Th e undersigned counsel of record certifies that the following listed persons are either interested parties or counsel . These representations are made in order that the Judges of this Court may evaluate possible disqualification or recusal. 1) Jay W. Hand De fendant

– Appellant 2) Michael W. Johnston Nathan Schattman 

### JOHNSTON LEGAL GROUP PC Attorneys for Jay W. Hand on appeal 3) Donald Shields Defendan t

– Not participating in AppealBrief of Appellant Jay W. Hand

– Page 3

4) Albert Filidoro, Jr. Filidoro Law Firm, PLLC At torneys for Jay W. Hand and Do nald Shields at trial 5) Carol Kohankie Defendant

– Not participating in Appeal 6) Greg Hargrove McDonald Sanders PC At torney for Carol Kohankie at trial 7) Harris Hughey Plaintiff

– Appellee 8) Mr. Scott Doody LAW OFFICES OF SCOTT R. DOODY Attorney for Har ris Hughey at trial and on appeal 9) Andrew Hawkins Hawkins & Walker PC Attorney for Harris Hughey at trial Respectfully submitted, 

### JOHNSTON LEGAL GROUP PC

By: _ /s/ MICHAEL JOHNSTON

_______ Michael W. Johnston S tate Bar No. 10840300 Nathan Schattman State Bar No. 00791606 4200 Airport Freeway Fort Worth, Texas 76117 Telephone: (713) 830

- 4816 Facsimile: (713) 830

- 4815
ATTORNEYS FOR JAY W. HANDBrief of Appellant Jay W. Hand

– Page 4 TABLE OF CONTENTS Identity of Parti es and Counse l

.............................................. ... 2
Table of Contents ............................................................... 4
Table of Au thorities

............................................................ 6
Statement of the Case........................................................... 9 Request for Oral Argument

.................................................... 1 0 Issues Presented on Appea l ................................................... 1 1
Statement of Facts

. ............................................................. 1 1
I. Procedural Summary

................................................... 1 1
II. Standard of Review

................................................... 1 1
III. Factual Summary

... ................................................... 1 2 Summary of t he Argument ................................................... 1 5 Argument................................................

. ......... .. ............ . 1 5
I SSUE 1 : The Trial Court erred in finding that Hughey

presented a prima facie case for any of his claims against Hand
. ... ... ................................. ... 1 5 A. The Texas Citizens’ Participation Act applies to this case
. ... 1 5
B. The elements of a cause of action for defamation.

...... ......... 1 8
C. The statements are no t defamatory as a matter of law
. ......... 19
D. The statements are not defamation per quod
. . .................. 2 1
E. The statements are substantially true
. ........................... 2 2Brief of Appellant Jay W. Hand

– Page 5

F. Hughey failed to show causation or damages. .................. 2 3

P r ayer................................................
........................... 2 4
Certificate o f Service ......................................................... 2 5 Certificate of Compliance................................................... 2 6
APPENDIX
LIST OF DOCUMENTS TAB
Order D enying Motion to Dismiss (CR 655 ) ................................. 1
Order Gr anting Motion to Dismiss (CR 576

................................. 2 The Hand Campaign Flyer (CR 165 )........................................... 3 Hughey Affidavit (CR 252 ) ..................................................... 4Brief of Appellant Jay W. Hand

– Page 6 TABLE OF AUTHORITIES
TEXAS CASES A.H. Belo & Co. v. Looney , ...................................................... 19 246 S.W.2 762 (Tex . App.

– Texarkana 1916), aff’d , 246 S.W. 777 (Tex. 1922) Bentley v. Bunton,

................................................ ............ 18, 22 94 S.W.3d 561 (Tex. 2002)
Casso v. Brand , ...................................................... ............ 22 776 S.W.2d 551 (Tex. 1989) Durckel v. St. Joseph Hospital , ........................... ... ............ ......... 21 78 S.W. 3d 576 (Tex. App.

– Houston [14 th Dist.] 2002, no pet.) Exxon Mobil Corp. v. Hines , ................................. ..................... 19 252 S.W.3d 496 (Tex. App.

– Houston [14 th District] 2008, pet. denied) Gartman v. Hedgepeth , ...... ...................................................... 20 157 S.W.2d 139 (Tex. 1941) Guinn v. Texas Newspapers, Inc ., ................................................ 19 738 S.W.2d 303 (Tex. App. Houston [14 th ] 1987, writ denied) Leyendecker & Assoc. v. Wechter , ..................... ..................... ... 20 683 S.W.2d 369 (Tex. 1984) In re Lipsky , ................................................... ..................... 12 460 S.W.3d 579 (Tex. 2015) Marshall v. Mahaffer , ........................... ......... ........................ 20 974 S.W.2d 842 (Tex. App.

– Beaumont 1998, pet. denied)
Morrill v. Cisek , ............... .......................................... ......... 20 226 S.W.3d 545 (Tex. App.

– Houston [1 st Dist.] 1989, writ den’d) Neely v. Wils on , ............................................. ..................... 22 418 S.W.3d 52 (Tex. 2013)Brief of Appellant Jay W. Hand

– Page 7

Rehak Creative Servs. v. Witt , ... .......................................... ...... 19 404 S.W.3d 716 (Tex. App.

– Houston [14 th Dist.] 2013, pet. den.) Schimmel v. McGregor , ...................................................... ...... 1 2 438 S.W.3d 847 (Tex. App.

– Houston [1 st . Dist.] 2014, pet. denied) Turner v. KTRK TV, Inc.,

.................................... ..................... 18 38 S.W.3d 103 (Tex. 2000).
Villasenor v. Villasenor

, ....................................... .................. 19 911 S.W.2d 411 (Tex. App.

– San Antonio 1995, no writ)
FEDERAL CASES Henry v. Lake Charles Am. Press, LLC , ................................. ...... 1 5 566 F.3d 164 (5th Cir. 2009) Monitor Patriot Co. v. Roy , ...................................................... 19 401 U.S. 265 (1971)
TEXAS STATUTES
Tex. Civ. Prac. & Rem. Code Ann. § 27.001

- 27.011

..................... 16, 17

TREATISES AND LEGIS LATIVE MATERIALS H. Comm. on Judiciary & Civil Jurisprudence, Bill Analysis,

......... ...... 16 Tex. H .B. 2973, 82d Leg., R.S. (2011) S. Research Ctr., Bill Analysis,

.......................................... ......... 16 Tex. H.B. 2973, 82d Leg., R.S. (2011)Brief of Appellant Jay W. Hand

– Page 8 Appeal No. 02
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- CV
IN THE SECOND DISTRICT COURT OF APPEALS

A T FORT WORTH, TEXAS

            JAY W. HAND

– Appellant s/Defendants

v. HARRIS HUGHEY

– Appellee /Plaintiff On Appeal from the 367 th Judicial District Court

Denton County, Texas, The Hon. Vickie Isaack s presiding

            BRIEF OF APPELLANT JAY W. HAND             Appellant /Defendant submits t his Brief. Appellant will be referred to as

“ Hand .” Appellee Harris Hughey will be referred to as “ Hughey

. ” The c o
d efendant s at trial , who are not par ticipating on appeal , will be referred to by name. References to the Clerk’s Record will be enclosed in parentheses and abbreviated (CR ##) with paragraph or line references where appropriate. References to the Appendix will be enclosed in parentheses and abbreviated (App. ##). References to the Reporter’s Record will be enclosed in parentheses and abbreviated (CR ##) with volume, and paragraph and line references where appropriate.Brief of Appellant Jay W. Hand

– Page 9             STATEMENT OF THE CASE             Nature of the Case :
H arris Hughey sued Jay W. Hand, Donald Shields, and Carol Kohankie f or libel and slander arising out of allegedly defamatory statements made during a Republican Party Primary Run Off for Denton County Justi c e of the Peace, Precinct 4. (CR 7

- 14). Kohankie w as later voluntarily non

- suited. (CR 43). Shields is not participating in this appeal.
Hand filed a Motion to Dismiss pursuant to the Texas Citizens Participation Act commonly known as an anti

- SLAPP (“Strategic Lawsuit Against Public Participation”) st atute. The proper application of the Act to the facts and circumstances presented by this case is the controlling legal question. Course of Proceedings : On November 24, 2014 , Judge Margaret Barnes voluntarily recused herself from the case (CR 30). On December 1, 2014, the Hon. Vicki Isaacks was appointed to preside over the case (CR 40). The case was presented to the 367 th District Court in Denton County, Texas via a Motion to Dismiss, the Hon. Vicki Isaacks presiding

. The Court heard Hand’s Mot ion to Dismiss on March 20, 2015 . ( R R . V. 3 p. 6 ). The Court originally granted the Motion to Dismiss on April 20, 2015 . (CR 576 ) 1

. Hughey filed a Motion for New Trial and Motion to Reconsider in the trial court on or about May 8, 2014 . (CR 463

- 493)

. On May 14, 2015, Hughey also filed Appeal No. 2

- 15

- 161 before this honorable court. (CR 498

- 499). Hughey’ s A ppeal No. 2

- 15

- 161 was dismissed as moot following the granting of Hughey’s Motion for New Trial and The Motion to Reco n sider.

1 Due to technical issues involved in a visiting judge electronically filing orders, the Order was not filed by the Clerk’ s Office until M ay 18, 2015. (CR 577).Brief of Appellant Jay W. Hand

– Page 10

Trial Court Dis

position: On June 30, 2015, the Court considered Hughey’s Motion for New Trial and Request for Reconsideration of the Defendant’s Motions to Dismiss. On July 2, 2015 the Trial Court entered an Order granting Hughey’s Motion to Reconsider and denying Han d’s Motion to Dismiss. (CR 655).
After the July 2, 2015 granting of the Motion to R econsider and the E ntry of the Denial of Hand’s Motion to Dismiss , th is interlocutory appeal filed by Hand followed. (CR 658

- 660 ). This interlocutory appeal is authoriz ed by Texas Civil Practice & Remedies Code §§27 and 51.
            REQUEST FOR ORAL ARGUMENT

            Appellant requests oral argument because the “Citizens” Participation Act,” (the “Act”) commonly known as an anti

- SLAPP (“Strategic Lawsuit Aga inst Public Participation”) statute was enacted in 2011. As a result , it still has a relatively underdeveloped body of case law

- despite the critical social protections that it offers. Therefore oral argument will assist the Court of Appeals in determin ing the future application of this law.Brief of Appellant Jay W. Hand

– Page 11             ISSUES PRESENTED FOR REVIEW

           
ISSUE 1 : The Trial Court erred in finding that Hughey presented a prima

facie case for any of his defamation claims against Hand
.             STATEMENT OF FA CTS            

I. Procedural Summary The Court conducted the hearing on Hand’s Motion to Dismiss on March 20, 2015. Defendants requested that the Reporter’s Record of that hearing, if any, be prepared for the Court, but have been informed there is no such Reporter’s Record. On April 20, 2015, Judge Isaacks e

- mailed the attorneys for all parties her decision. (C R 578 ). She initially signed her Order granting the Dismissal on April 20, 2015. (CR 576). However, as a visiting judge, the Electronic Filing System initially rejected her Order because her signature was not entered into the Denton County District Clerk’s e

- filing s ystem. (CR 579

- 580 ). Eventually on May 18, 2015 a signed Order was entered, but the entered Order did not contain the April 20, 20 15 date of signing. ( CR 577 ). A Motion for Judgment nunc pro

tunc to correct the date of the Judgment of Dismissal was pending when the
Plaintiff’s Motion for New Trial and Reconsideration of the Dismis s al was granted. (CR 572

- 575).Brief of Appellant Jay W. Hand

– Page 12

II. Standard of Revie w
A de novo standard governs review of the trial court's determination regarding the propriety of a dismissal under section 27.005 of the Texas Citizens Participation Act

. See, e.g., Rehak Creative Servs. v. Witt , 404 S.W.3d 716, 727

- 728 (Tex. App.

– Houst on [14 th Dist.] 2013, pet. den.). Thus , the appellate court makes an independent determination and applies the same standard used by the
trial court. Id. The ultimate question is whether the record contains a prima facie case for the plaintiff shown by minimum quantum of clear and specific evidence
and rational i nferences drawn from circumstantial evidence that would establish
each essential element of the claim s in question if no contrary evidence is offered. See, e.g., In re Lipsky , 460 S.W.3d 579, 589

- 90 (Tex. 2015); Schimmel v. McGregor , 438 S.W.3d 847, 855 (Tex. App.

– Houston [1 st . Dist.] 2014, pet. denied)

. III. Factual Summary Harris Hughey brought a defamation case alleging that Jay W. Hand, Donald Shields, and Carol Kohankie had made libelous an d sla nderous communications about Hughey during the course of an election campaign. Hughey voluntarily non

suited his claims against Kohankie. Shields is not a party to the appellate proceedings, but is still a party in the trial proceedings in Denton C ounty that are stayed by this appeal.Brief of Appellant Jay W. Hand

– Page 13

The following facts were undisputed below: In May of 2014, Hughey and Hand were in a runoff race in the Republican Primary for the office of Justice of the Peace, Precinct 4, Denton County, Texas.
Hand was the incumbent Jus tice of the Peace. The runoff was necessary because when the Republican Primary was held on February 25, 2014 no candidate
received fifty percent ( 50% ) of the vote. Hand and Hughey received the highest
vote totals ; and , therefore qualified for the runoff

. The runoff election was held May 17, 2014. With 2,834 votes , Hand won by a narrow margin over Hughey’s 2,784 votes. The disputed factual issues in this case concern the content of and subsequent interpretation s of a single piece of campaign literature. Hughey complains that during the runoff H and published a defamatory flyer by mail to the
voters of P recinct 4, and then repeated the information verbally at various time on the campaign trail. (Plaintiff’s Response to Defendants’ Motions to Dismiss CR
61

- 63). Hughey also complains that Shields republished the flyer by posting it (a legal distance) f

rom a polling place on election

- day and discussing the contents of the flyer with voters. (CR 63). A color copy of the flyer is attached as App. 3. The flyer i dentifies Hughey’s date of registration (DOR) as a voter as May 28, 2006. (App. 3 CR 165). The flyer asserts that Hughey doesn’t vote. (Id.) The flyer contains the following statements:Brief of Appellant Jay W. Hand

– Page 14

“Prior to his own election two months ago Mr. Hughey had NEVER vot ed in a Republican Primary Election. The only election Mr. Hughey ever voted in was 2008 , when Barrack Obama won the presidency... Don’t you wonder what brought him out to vote that year? ” (Emphasis in Original)(App. 3 CR 165). In contending that the forego ing paragraphs were false and defamatory, Hughey obtained certified copies of his voting records in Denton (CR 90) and Tarrant Counties (CR 86). Mr. Hughey also provided an affidavit in which he stated that he spoke at a candidate ’ s forum, and made availa ble to Mr. Hand a copy of his voting records that showed he had voted in some other elections after 2006 besides
the 2008 General Election. (App. 4 CR 252). While Mr. Hughey contends that the flyer unfairly portrays him as an Obama voter in 2008, he doe s not specifically testify that he did not vote for Obama. (App. 4 CR 252). Knowing only that he voted in the general election in 2008, it is possible under Texas law that he “undervoted” his presidential vote or voted for the Republican nominee (McCain), for Obama, for a write

- in, or for one of four other minor party candidates. Nor does Mr. Hughey testify that he voted in any other Republican primaries prior to the 2014 primary. (App. 4 CR 252).Brief of Appellant Jay W. Hand

– Page 15             SUMMARY OF THE ARGUMENT

           
Th e Trial C ourt erred when it reversed itself and denied the Motion to Dismiss. The Texas Citizens’ Participation Act clearly applies to the issues in this

case
. Hughey failed to present a prima facie shown by minimum quantum of cl ear and specific evidence that would establish each essential element of his defamation
claim s against Hand if no contrary evidence is ultimately offered at trial

. As a result, the Trial Court’s original decision dismissing Hughey’s claims against Hand was the correct decision and should be reinstated by this Court.

            ARGUMENT            
ISSUE 1 : The Trial Court erred in finding that Hughey presented a prima

facie case for any of his defamation claims against Hand.
A. The Texas Citizens’ Participation Act applies to this case
. Concerned over the growth of meritless lawsuits that have the purpose or effect of chilling the exercise of First Amendment rights, a number of state legislatures have created a method for better striking the balance between interests
in indiv idual reputation and freedom of speech. See Henry v. Lake Charles Am. Press, LLC , 566 F.3d 164, 167

- 68 (5th Cir. 2009). In September of 2011, TexasBrief of Appellant Jay W. Hand

– Page 16

enacted the “Citizens Participation Act,” (the “Act”) commonly known as an anti

SLAPP (“Strategic Lawsuit Ag ainst Public Participation”) statute. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001

- 27.011; H. Comm. on Judiciary & Civil Jurisprudence, Bill Analysis, Tex. H.B. 2973, 82d Leg., R.S. (2011). The Act’s purpose is to encourage the involvement of citizens in the exchange of ideas and to stop abuses of the legal system, including filing of frivolous claims aimed at silencing citizens. See H. Comm. on Judiciary & Civil Jurisprudence, Bill Analysis, Tex. H.B. 2973, 82d Leg., R.S. (2011). The Act

encourages grea ter public participation of Texas citizens through safeguarding the constitutional rights of persons to petition, speak freely, and associate freely, by providing for an expedited motion to dismiss frivolous lawsuits aimed at retaliating against someone wh o exercised those rights. See id. The Legislature has found that frivolous, meritless lawsuits aimed at silencing involved citizens are becoming more common and a great threat to the growth of our democracy, and the Act
allows these cases to be dismissed e arlier than would otherwise be possible, limiting the costs and fees associated with defending against such a claim. See S. Research Ctr., Bill Analysis, Tex. H.B. 2973, 82d Leg., R.S. (2011). The Act allows a court to dismiss a legal action based on, rel ating to, or in response to a party’s exercise of the right of free speech, right to petition, or right of association. Tex. Civ. Prac. & Rem. § 27.003. The right to free speech isBrief of Appellant Jay W. Hand

– Page 17

defined as a communication made in connection with a matter of public con cern. Tex. Civ. Prac. & Rem. § 27.001. A matter of public concern is an issue relating to health or safety, environmental, economic, or community well

- being, the government, a public official or public figure, or a good, product, or service in the
market place. Id.
The Act establishes a burden

- shifting procedure for weeding out frivolous lawsuits aimed at silencing a citizen’s right to free speech. To succeed on a motion to dismiss the movant must show that the legal action is based on, relates to, or is in response to the party’s exercise of free speech. Tex. Civ. Prac. & Rem. § 27.005(b)(1). If the movant makes this showing, the burden then shifts to the claimant to establish by clear and specific evidence a prima facie case for each
essential element of the claim in question. Tex. Civ. Prac. & Rem. § 27.005(c). If the claimant fails to make this showing, the trial court must dismiss the claim. Tex. Civ. Prac. & Rem. § 27.005(b)

. The Act only exempts enforcement actions by the State, actions brought again st sellers and lessors of goods and services under specific circumstances, and actions seeking recovery for bodily injury, wrongful death, or survival. Tex. Civ. Prac. & Rem. § 27.010. The extremely limited scope of this exemption makes the Legislatures in tent that the Act would apply broadly to both governmental and
individual concerns.Brief of Appellant Jay W. Hand

– Page 18

In his Response to Hand’s Motion to Dismiss, Hughey concedes that the Texas Citizen’s Participation Act applies to the statements at issue in this case. (CR 59). It is u ndisputed that as a candidate Hand was exercising his right to free speech in interacting with the voters of Denton County Precinct 4.
B. The elements of a cause of action for defamation. In general, a plaintiff must establish the following elements to prev ail on a
claim of defamation:
1. The defendant published a statement of fact;
2. The statement referred to the plaintiff;
3. The statement was defamatory;
4. The statement was false;
5. With regard to the truth of the statement, the defendant was:

a. Acting with malice,
b. Neg ligent; or

c. Strictly liable.
6. The plaintiff suffered pecuniary injury or was defamed per se allowing a presumption of pecuniary injury. See, e.g., Bentley v. Bunton, 94 S.W.3d 561, 579

- 590 (Tex. 2002). However, causes of action for written defamation (libel ) and oral defamation (slander) are distinct and have slightly different elements. Exxon Mobil Corp. v. Hines , 252Brief of Appellant Jay W. Hand

– Page 19

S.W.3d 496, 501 (Tex. App.

– Houston [14 th District] 2008, pet. denied). In addition, defamatory statements are broken down into those that are actionable in themselves (

per se) and those that are only actionable following an allegation and proof of special damages ( per quod ). Id.
In his Response to the Motion to Dismiss, Hughey pleads defamation on
defamation per se, not per quod . (CR 77 ) . Therefore this brief will focus primarily
on libel and/or slander per se
. T he court should also be aware of the consequences of Hughey’s concession that he is a “public official” for the purposes of the de famation analysis because
the statements concer n his fitness for a public office he sought. See, e.g., Mon itor Patriot Co. v. Roy , 401 U.S. 265, 273

- 274 (1971); Guinn v. Texas Newspapers,
Inc ., 738 S.W.2d 303, 305 (Tex. App. Houston [14 th ] 1987, writ denied).
C. The statements are not defamatory as a matt er of law.
Whether the statement at issue is capable of defamatory meaning initially is a question of law for the court. A statement is only defamatory as a matter of law if its defamatory meaning is unambiguous in the minds of ordinary readers,
without referring to any meaning attributed to it by the plaintiff or defendant. A.H. Belo & Co. v. Looney , 246 S.W.2 762, 768

- 69 ( Tex. App.

– Texarkana 1916), aff’d , 246 S.W. 777 (Tex. 1922). To determine whether the words are used are reasonably capable of a d efamatory meaning, the publication must be construed asBrief of Appellant Jay W. Hand

– Page 20

a whole in light of the surrounding circumstances based on how a person of ordinary intelligence would perceive it. Turner v. KTRK TV, Inc., 38 S.W.3d 103, 113 (Tex. 2000). Read in compliance with Tur ner, the statements at issue are not simp ly defamatory per se. These statements do not:
1. Injure his personal reputation and clearly expose him to public hatred, contempt, ridicule, or financial injury

- Gartman v. Hedgepeth , 157 S.W.2d 139, 140

- 141 (Tex. 19 41);
2. Impeach his honesty

- Gartman v. Hedgepeth , 157 S.W.2d 139, 140

- 141 (Tex. 1941);
3. Expose natural defects and clearly expose him to public hatred, contempt, ridicule, or financial injury

- Gartman v. Hedgepeth , 157 S.W.2d 139, 140

- 141 (Tex. 1941);
4. I njure his business reputation

– Morrill v. Cisek , 226 S.W.3d 545, 549 (Tex. App.

– Houston [1 st Dist.] 1989, writ den’d);
5. Impute his performance of a crime

– Leyendecker & Assoc. v. Wechter , 683 S.W.2d 369, 374 (Tex. 1984);
6. State he has a loathsome disea se

– Villasenor v. Villasenor, 911 S.W.2d 411, 418 (Tex. App.

– San Antonio 1995, no writ); or,
7. Impute sexual misconduct. Marshall v. Mahaffer , 974 S.W.2d 842, 949 (Tex. App.

– Beaumont 1998, pet. denied).
As a result

– Hughey has not met his statutory b urden to prove that a per se defamatory statement was made by Hand

. Something brought Hughey to the General Election polls in 2008 when he had not voted in the 2008, 2010, and 2012 Republican primaries or the 2006, 2010,Brief of Appellant Jay W. Hand

– Page 21

and 2012 general elections. Hand i s entitled to offer his opinion as to what the motivation might have been. Voters are free to have their own opinion. But,
whether Hughey vote d for Obama in 2008 or undervoted or voted for a different
candidate cannot serve as the basis for a defamation per se case. The act of voting in a general election is simply not something that damages a person’s character and reputation in the community.
D. The statements are not defamation per quod
. When a statement has an ambiguous meaning

– that is one defamato ry and

one non
- defamatory, innuendo or implication can be used to explain the statement’s true meaning. Turner v. KTRK TV, Inc., 38 S.W.3d 103, 113 (Tex. 2000). Again, the statements are considered in their entire context.
The test for actiona b le defamat ion by innuendo is not how the statement might be construed by the plaintiff, but how the statement would be construed by the average person or the general public. Durckel v. St. Joseph Hospital , 78 S.W. 3d 576, 585 (Tex. App.

– Houston [14 th Dist.] 2002 , no pet.). Here the complained of statements are not “ ambiguous ” as defined by the
Turner court. O ne candidate is clearly offering an opinion that he has participated more in the relevant political party than the other. Read in context , th e

c omplained of flyer and campaign statements are opinions like “I am a more active Republican than you based on your voting record” or “I am a more involvedBrief of Appellant Jay W. Hand

– Page 22

citizen than you based on your voting record.” Even if these statements were false, which they were not, they are simply not defamatory.
E. The complained of statements are substantially true. To prove an action for defamation, the complained of statements must be
false. See, e.g., Neely v. Wilson , 418 S.W.3 d 52, 62 (Tex. 2013). When a plaintiff is required to pr ove malice, the burden to prove falsity lies on the plaintiff. Bentley
v. Bunton , 94 S.W.3d 561, 586 & n. 62 (Tex. 2002) ; Casso v. Brand , 776 S.W.2d 551, 554 (Tex. 1989)

. Here Plaintiff admits that he has the burden to prove malice. (CR 65).
In all defam ation cases the courts use the substantial truth test to determine if
a statement was false. Neely , 418 S.W.3d at 63. Under the substantial truth test a
statement is not considered false unless it would have a different effect on the mind
of a listener t han the true statement would. Id. at 63

- 63. If the document or statement correctly conveys the gist of a story or situation, but is incorrect in some details, then it is substantially true. Turner v. KTRK, Inc., 38 S.W.3d 103, 115 (Tex. 2000).
Here the “gist” of the flyer is substantially correct based on the Plaintiff’s own evidence. According to the certified records from Denton County produced by Plaintiff, since 2006 Plaintiff voted in only one general election

– 2008

– out ofBrief of Appellant Jay W. Hand

– Page 23

four . (CR 84) The sa me record shows that since his 2006 registration, Plaintiff had not voted in a Republican Primary until 2014. (CR 84). Going further back, while Plaintiff had voted in 3 general elections between 1990 and 2005

– out of 8. (CR 86). And , there is still no record of Plaintiff voting in a Republican primary from 1990 to 2013. (CR 84, 86). So, while Plaintiff is correct that he had voted in some other elections, under
the Turner test, the gist of the flyer and subsequent conversations pointed to by
Plaintif f are substantially correct. Plaintiff failed to even offer his own testimony
that “he did not vote for Obama” in 2008 , explain his failure to vote in the 2012 general election, explain his failures to vote in the other general elections, or offer
evidenc e that he had voted in a Republican Primary at some point in his life prior
to 2014. Hughey simply has no evidence of the substantive falsity of the statements. Hughey ’s simple disagreement with Hand about the flyer and the truthfulness of
the statements in it or relying on it is not enough to meet this standard. As a result, Hughey ’ s claim for defamation fails. Although, Hughey may be disappointed that
he lost a close race , the fact he does not like losing does not mak e t he flyer illegal.
F. Hughey failed t o show evidence of causation or damages
. Since Hughey failed to provide evidence to support a prima facie finding that the statements he complains about were false, let alone defamatory, he hasBrief of Appellant Jay W. Hand

– Page 24

failed to show that any wrongful acts by Hand were a proximat e cause of his defeat in the primary election or his alleged damage of the lost office of Justice of the
Peace.

            PRAYER             WHEREFORE, PREMISES CONSIDERED, Jays W. Hand pray s that the
Denial of the Motion to Dismiss be reversed, and a take

- nothing judgment be
rendered in his favor extinguishing the claims brought by Harris Hughey against
him

. The Court should also direct the trial court to a ward Hand his costs and attorney’s fees and the statutorily mandated sanction to deter such fri volous claims
in the future. Respectfully submitted,


### JOHNSTON LEGAL GROUP PC

By:

_ /s/ MICHAEL JOHNSTON

__________ Michael W. Johnston State Bar No. 10840300 Nathan Schattman State Bar No. 00791606 4200 Airport Freeway Fort Worth, Texas 76117 Telephone: (713) 830

- 4816 Facsimile: (713) 830

- 4815
ATTORNEYS FOR JAY W. HANDBrief of Appellant Jay W. Hand

– Page 25             CERTIFICATE OF SERVICE             This is to certify that pursuant to the Applicable Rules of Civil Procedure, the above document, including attachments, was served upon the following attorney(s) of record and pro se parties on the ___ 24 th

__ ___ day of __ September __________, 2015 , by the method indicated:

_____ In Person to:

_____ By Regular U.S. Mail to:

_____ By Cou rier Delivery to:

_____ By Certified Mail, Return Receipt, Requested to:

_____ As directed by the Court via e

- filing to:

__ X

__ By facsimile to: __X__ By E

- Mail to: VIA Facsimile: (888) 743
- 5203 VIA E
- MAIL: SRD@srdesq.com Scott R. Doody LAW OFFICES OF SCOTT R. DOODY 420 Throckmorton Street, Suite 200 Fort Worth, Texas 76102

_ /s/ Michael Johnston

_________________ Michael W. JohnstonBrief of Appellant Jay W. Hand

– Page 26 Appeal No. 02
- 15
- 239
- CV
IN THE SECOND DISTRICT COURT OF APPEALS

A T FORT WORTH, TEXAS

            JAY W. HAND

– Appellant s/Defendants

v. HARRIS HUGHEY

– Appellee /Plaintiff On Appeal from the 367 th Judicial District Court

Denton County, Texas, The Hon. Vickie Isaacks presiding

            CERTIFICATE OF COMPLIANCE

            This is to certify t hat this Brief complies with the word count limit of Texas Rule Appellate Procedure 9.4(i)(3). Utilizing the word count feature of Microsoft Office Word 2007 this Brief contains _ 4,762 _ words.

_ /s/ Michael Johnston

_______________________ Michael W . JohnstonBrief of Appellant Jay W. Hand

– Page 27 Appeal No. 02
- 15
- 239
- CV
IN THE SECOND DISTRICT COURT OF APPEALS

A T FORT WORTH, TEXAS

            JAY W. HAND

– Appellant s/Defendants

v. HARRIS HUGHEY

– Appellee /Plaintiff On Appeal from the 367 th Judicial District Court

Denton Coun ty, Texas, The Hon. Vickie Isaacks presiding

            APPENDIX OF APPELLANT            
LIST OF DOCUMENTS TAB Order Denying Motion to Dismiss (CR 655 ) ................................. 1 Order Granting Motion to Dismiss (CR 576 )................................. 2
The Hand Campaign F lyer (CR 165 ).......... ................................. 3 Hughey Affidavit (CR 252 ) ..................................................... 4