                                                                              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
